BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob -

[THEME FROM ROCKY] What? Brooke?

[THEME FROM ROCKY]

BROOKE GLADSTONE: Oops, sorry. Forgot to turn off my phone.

BOB GARFIELD: All right, I know you really have the Star Trek theme [LAUGHS] on your phone, but we staged this little bit to make a point. The Rocky ringtone came up a few years ago in our conversation with a documentary film director who had to pay thousands of dollars to use it when a cell phone rang in a scene that she could not cut. Many argued that such cultural artifacts should be covered by fair use, a clause in copyright law that allows for limited use of copyrighted material. But filmmakers continue to pay licensing fees for all sorts of ridiculous things.

BROOKE GLADSTONE: The print world relies on fair use. An author doesn't think twice about quoting from another book. But Harvard Law Professor Lawrence Lessig says the settlement between Google Books, the Association of American Publishers and the Authors Guild could carry the crazy licensing practices of films into the print world. On Thursday, all eyes were on a federal judge in New York City who was expected to rule on the settlement, but he said he couldn't because, quote, “There’s just too much to digest.” No kidding. Opposing the Google Books settlement are big companies like Microsoft and Sony, and big countries like France and Germany, and big agencies like the U.S. Department of Justice.

BOB GARFIELD: Google argues that by scanning 18 million books it would help authors by promoting their work and help humanity by building the world’s largest online library. And for nearly 3 million books, those that are in public domain, there was no problem. But most books are still under copyright. Google’s plan was to scan them, make them searchable and offer users relevant snippets. If users wanted more, they could follow a link to buy the book. Google figured this setup would fall under the principle of fair use, but Lawrence Lessig says not everyone was having it.

LAWRENCE LESSIG: The publishers and the Authors Guild immediately filed a lawsuit against Google, declaring that Google’s design to scan books violated copyrights, unless they had permission from the copyright owner to scan the books, even to make just an index of the books.

BOB GARFIELD: Tell me about the settlement of the lawsuit.

LAWRENCE LESSIG: Well, when Google was sued there was a lot on the line because if Google lost this lawsuit it would be potentially a billion-dollar judgment against them. So they struck a deal that said that a certain percentage, 20 percent of these books that were presumptively under copyright would be made available to the public for free, and then if people wanted to get access to more than that, they could pay a certain amount and get access to the full book. So in one sense, sounded great because people were getting access to 20 percent for free.

BOB GARFIELD: But let's talk about the money that people would pay for access to the other 80 percent. This would not be a profit center for Google. Where would that money go?

LAWRENCE LESSIG: It ostensibly goes to a new nonprofit collecting society whose objective is to deliver this money to the authors. But here’s the core problem that Google faces, that we all face. The vast majority of these authors – I think the estimate is 75 percent of the books that Google wanted to scan were books that were presumptively under copyright but for which the authors, the copyright owner, could not be found. We can’t – we don't know who they are. They don't even know they have rights. And the basic problem here is that our copyright system fails to tell us with whom we should be negotiating when we're trying to clear the rights to get access to this work. Now, Google’s technicians and lawyers were enormously clever in figuring a way around this basic failing of the copyright system. My concern is that their elaborate way around this failure is going to create an enormous range of costs down the road.

BOB GARFIELD: And one of the costs that you've identified is that it suddenly makes every quotation from every work a legal matter in which lawyers get involved and money is exchanged, which you think is cumbersome to the point of absurdity. Is that your central qualm?

LAWRENCE LESSIG: Yes. I had this epiphany moment when I was taking my three-day-old daughter into the hospital for an emergency evaluation about whether she had a severe form of jaundice, and obviously, I was terrified. And I downloaded the article that had an extensive review of this disease and printed it out and was sitting there in the waiting room with my daughter. And I got to the critical point in the article where they had a table that was going to tell me whether I needed to worry or not. And when I looked to where the table was, there was a little passage that said, the rights holder has not authorized the reproduction of this table in this digital form. And it struck me as astonishing that we had already come to the point where we were licensing at the level of a graph or a table inside of a scientific journal article about a disease that, of course, parents and everybody need to have access to information about so that they can know how to deal with that disease. And my concern is what the Google Books Project is doing is cementing us down this path.

BOB GARFIELD: What do you think is a better alternative to this scheme?

LAWRENCE LESSIG: Well, I think the first and least controversial solution here should be that Congress should establish a simple registration requirement, not when something is created but in order to maintain the copyright. So let's say 14 years after you have published something, you need to register that. And if you don't register that, then you’re signaling to the world that you don't care about the copyright and the world can treat it as if you don't care about the copyright. But if you do register it, at least we have a clear understanding of who owns what. The second change is we need to once again think about what the balance should be between free access to culture and metered access to culture, because both extremes are mistakes, either the extreme that says everything is free because then lots of people won't create because they can't cover their cost of creating, or the regime that says everything needs to be licensed, because in that world there’s a whole range of creativity – think of kids producing stuff on YouTube – that can't begin to happen because the cost of negotiating and clearing those rights is just so extreme.

BOB GARFIELD: Licensing regimes, 18 million books scanned, lawyers, content industries to deal with - is this a Gordian knot that can never be untangled?

LAWRENCE LESSIG: Well, I think that Gordian knots are cut by bold policy action. Peter Drucker often said, there’s nothing so bad as doing efficiently that which should not be done at all. And I think that Google has done efficiently something that maybe we shouldn't be doing at all, which is this elaborately complex system for getting access to culture that has no continuing need for copyright protection. If we could fix the problem that Congress created, then I think it’s possible to cut this Gordian knot.

BOB GARFIELD: That Peter Drucker quotation is great. Now do you owe him money?

LAWRENCE LESSIG: You might, but I don't.

[LAUGHTER]

BOB GARFIELD: All right, Larry, thank you so much.

LAWRENCE LESSIG: Thank you.

BOB GARFIELD: Lawrence Lessig is the director of the Edmond J. Safra Foundation Center for Ethics at Harvard University and professor of law at Harvard Law School.