Google’s efforts to make out of print books available online has run into a major stumbling block. Judge Chin ordered that books can only be digitized by Google if the author opts in; the agreement which he through out called for opt out. This is an shame and a highly inefficient result. As reported, the intricacies of copyright law and the unavailability of many rights holders means that opt in is not feasible in many cases. As a result, thousands of books will not be digitized at all. Instead of transferring rights to authors (which was apparently Judge Chin’s intent) he has simply destroyed valuable property rights. This case was argued as an issue of the distribution of rights, but it is really about the creation of rights — or, as it turns out, their non-creation.