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Round Up of Google Book Settlement Articles

The big news on the tech/book blogs is the impending approval of the Google settlement. May 5, 2009, is the final date for filing objections to the Google Settlement. Google Print went live in October 5, 2004. At that time, Google had scanned over 100,000 books to be part of its GoogleBookSearch program wherein it indexed content to be used in conjunction with its Google search engine. In December of 2004, Google announced a strategic alliance with “Harvard, Stanford, the University of Michigan, and the University of Oxford as well as The New York Public Library to digitally scan books from their collections so that users worldwide can search them in Google.”

Less than a year later, Author’s Guild filed a class action suit against Google, arguing that the scanning and digitizing of copyrighted content was “a plain and brazen violation of copyright law.” The result of the class action is to provide a small royalty to each author whose work was scanned in, a payment $34.5 million to create the Book Rights Registery, and a monopoly over orphaned works (works that are either unregistered or whose copyright owners can’t be found).

The settlement essentially gives those involved (Google and the soon to be formed Book Rights Registry) exclusive digital rights from now to forever to all works, copyrighted and uncopyrighted. Right now, as Mike Shatzkin points out, the revenues that are raised by the sale of orphan works will get paid to Book Rights Registry for it gets 63% of the sale. There is no provision as to how the revenue is distributed. Will the BRR keep the revenue? Distribute it to those who are registered with the BRR?

A class action requires some similarity in plaintiffs and, as Dr. Pamela Samuelson notes, Google would have vigorously fought the class certification if not for the settlement:

In the absence of the proposed settlement, Google would almost certainly have vigorously fought against certification of the class in the Authors Guild case. After all, the guild has only a few thousand members and most of them do not write the kinds of scholarly works that are typically found in major university research libraries. Many scholars would want their books to be scanned by the Book Search project so they would be more accessible to potential readers.

Zohar Efroni suggests that we cannot condemn Google yet and that the real monopolists are the Author’s Guild and the AAP. (I actual agree with this sentiment. Author’s Guild’s position in this case is particularly offensive given that AG was part of the Reed-Elsevier, Inc., et al. v. Muchnick, et al. in which the Second Circuit found that it did not have the legal right to approve a settlement involving writers who have not registered a copyright. This case is now set to be heard by the Supreme Court of the United States. C.E. Petit blogged back in March that the appropriate and ethical thing to do is to await the Supreme Court’s ruling instead of jamming through a settlement which may be invalid under the law once the Supreme Court is done).

Each author will have to decide whether to opt out of the settlement proposal, but it behooves authors to seek out information to determine to what they are agreeing if they choose to be part of the settlement.

Other links of interest from C Yen (thanks!):

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

14 Comments

  1. Lucinda Betts
    Apr 19, 2009 @ 06:25:24

    So Jane, if you had a romance novel that Google had scanned and posted, what would you do with the settlement issue?

    Best,
    Lucinda

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  2. Meljean
    Apr 19, 2009 @ 09:18:50

    WWJD? O_o

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  3. Hortense Powdermaker
    Apr 19, 2009 @ 11:11:04

    The settlement essentially gives those involved (Google and the soon to be formed Book Rights Registry) exclusive digital rights from now to forever to all works, copyrighted and uncopyrighted.

    “Exclusive digital rights” sounds like no publisher would be able to sell an ebook version of any copyrighted book – surely that is not what you meant to say, Jane, or (very likely) I am misunderstanding what you wrote? Or does this apply only to “orphaned” work?

    Also wondering if, when the copyright for a copyrighted orphan book expires, it wouldn’t move into the public domain and anyone could e-publish it.

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  4. Jane
    Apr 19, 2009 @ 13:07:30

    @Hortense Powdermaker Sorry, yes. I need to revise that. It gives them a monopoly over unregistered and registered orphan works.

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  5. Mike Briggs
    Apr 20, 2009 @ 00:57:17

    The frightening part about this settlement is that Google will have the rights to sell out-of-print books that are still under copyright. Electronic editions and print-on-demand don’t count.

    Now, copyright terms are probably too long, and there are a huge number of orphaned works, which is what Google is ostensibly trying to bring back into the public view. Kudos for good intent. However, many authors have early works that quickly go out of print. If their careers are successful, those books are often re-printed at a later date. Copyright makes it possible for the author to negotiate the terms for re-publishing her work just as she handled the original sale. We’ve gotten a couple of nice checks over the past year or so from books that were once out of print, and are now selling nicely.

    Under the settlement, Google can now sweep in, grab the out-of-print books, and basically do whatever it wants with them (including publishing both electronic and print editions) with no negotiation. Copyright effectively ceases to exist as soon as a book is out of print. Sure, they pay the author a percentage of whatever profit they make on the book, but the author no longer has ANY say in the fate of her work.

    I also find it mind-boggling that a few-thousand people in what’s effectively an overblown book club can presume to speak for all authors, everywhere. Even stranger is that a lawsuit settlement between private parties can obliterate long-standing legal precedence and throw copyright provisions away not only for current authors, but for future generations of them.

    I’m not adverse to re-examining copyright. However, if we want to change the laws that every creative endeavor depends upon, we should probably seek a broader forum and more extensive debate than this ill-considered settlement. Google’s basically paying a few million in the short term, and gaining immunity to prosecution for what otherwise would be overt commercial copyright infringement. The rest of us have been sold down the river without having a chance to even vote.

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  6. Kaetrin
    Apr 20, 2009 @ 01:17:41

    I don’t quite get how this happened. How can there be a settlement for ALL copyright when only certain individuals are party to it? It doesn’t make sense to me at all.

    Mike Briggs’ points above make a lot of sense.

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  7. Hortense Powdermaker
    Apr 20, 2009 @ 01:17:52

  8. Mike Briggs
    Apr 20, 2009 @ 08:35:02

    Hortense:
    You’re right, and we have opted out. However, it still seems wrong that this is an opt-out rather than opt-in arrangement. What if I got together with some random writer’s group (who could claim class certified status as representing all authors in court) and arrived at a settlement whereby all copyrights belonged to my company, unless the author opted out? It could quickly become a minefield. Remember, while I like google, they are a private company, and if they get this settlement there will doubtless be many other companies looking to get similar settlements so that they can provide similar services. How many times should an author have to opt-out to protect their copyright? Shouldn’t they be opting IN if they want a company to publish their out-of-print works?

    Of course, opting in would fail to address the orphaned works, which is why I think we need to re-examine copyright law rather than slapping a patchwork or legally-binding settlements on top of it.

    The fine print also says that Google will honor opt-out requests for now, but makes it clear that it’s behavior may change at some future time. Google is a good company, and less evil than most corporations, but NO company should have this kind of power handed to them.

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  9. XandraG
    Apr 20, 2009 @ 09:36:49

    I still don’t get this. I’m not a dim person, but man, do I feel the lack of a law degree here. Does this mean that all those lovely public-domain books like the classics will no longer be freely accessible through the Gutenberg project or similar such?

    Nothing about this makes any sort of sense.

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  10. Frances Grimble
    Apr 22, 2009 @ 12:01:29

    Google scanned three types of books:

    1. Genuinely public-domain, copyright-expired works. This is perfectly legal. There is no reason why Google, Project Gutenberg, the publisher Dover Books, or anyone else should not scan public domain works and give them away or sell them on a nonexclusive basis. They’re in the public domain. Furthermore, no one is trying to oppose Google or anyone else doing that.

    2. Approximately 2.5 million books that are in print and have locatable publishers and authors. Such as probably some of my own eight self-published books–although, since I have opted out of the Settlement, Google will not tell me. The only people Google will tell whether their books were scanned, is those who do not opt out of the Settlement and _also_ file a claim. This is very much in violation of copyright law. It’s also likely to put me out of business/end my publishing and writing career, if Google, a much larger publisher than I can ever be, sells competing editions of my own works.

    3. “Orphan works.” These are by definition 20th century, post 1923 (before that they would be in the public domain) but out of print. Although Google could make a lot of money out of them collectively, tons of “orphan works” are available in print form on the used book market for a few dollars a copy, often a hardcover in good condition at that. The public is not going to be benefiting from a sudden access to rare orphan works. Many are also not that orphan, for example one of my relatives who died a few years ago wrote a couple out-of-print that I believe Google scanned. “Orphan works,” can have significant reprint value. As just one example, “The Lord of the Rings” languished for years before achieving bestseller status.

    For those who believe copyright should die with the author or even the “in print” status of a book, this is an issue that should be settled by legislative means–changing US copyright law. It should not be settled by Google scanning whatever they wish, and then daring everyone in the world (literally, as the Settlement applies to every copyright owner in every country that signed the Berne agreement) to sue Google.

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  11. DS
    Apr 22, 2009 @ 13:28:35

    I don’t think LotR was orphaned. Tolkein had a US hard cover publisher, but Ace stepped in and published a paperback edition based on a convoluted argument that because the US hardcover edition was made up of pages printed in the UK that somehow this created a loophole that allowed them to put out an unauthorized edition. Only the Underpants Gnomes would have understood this:

    Phase 1: Collect Underpants
    Phase 2: ?
    Phase 3: Profit!

    Of course this hasn’t stopped me from adding a copy of the Ace Edition to my book shelf years ago.

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  12. Chris
    Apr 22, 2009 @ 18:41:07

    I have to say that I’m looking forward to your commentary on this particular WSJ article in the near future. I’ve been shaking my head a fair amount and I’m only a few paragraphs into it…

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  13. Chenebe
    Apr 24, 2009 @ 14:08:56

    I am probably extremely cynical but I see this as a rather ingenious way by Google to make it impossible for anyone else to compete in what is their core business: search and the advertising that they sell along with it.

    So, first Google gets this special agreement that allows them carte blanche over all this great content (and I do agree that opt-out rather than opt-in is fairly outrageous) and that no other competitor can get unless they manage to wrangle another such agreement (prediction: by then, everyone will know what a lousy deal it is for them and no such agreement will ever be given to any other company). Okay, so what we have here is a MONOPOLY in the making.

    (And, eww, reading in conjunction with the article linked by Chris above, does it mean authors will start writing in a style that will favour hits in Google Book Search? Considering how websites changed to improve their rankings in Google search, I think the answer is “yes”.)

    So, if you had a choice, as a searcher, would you use Google search which not only gives you access to all the stuff on the web plus this content richness of millions of scanned books, or would you use some other search engine which does not pick up this extra content? And Google will be the only ones who will get information about how people tend to search for such content, thereby being the only ones who have access to the information neccessary to tweak and improve their search algorithms, leaving competitors in the dust. Guess what, another MONOPOLY in the making.

    I’m almost filled with admiration for this ingenious strategy, except I’m too busy quaking in my boots.

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  14. Chenebe
    Apr 25, 2009 @ 17:01:00

    Just ran across this rant against the Google agreement by one author Meljean Brook: http://meljeanbrook.com/blog/archives/1921

    ReplyReply

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