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.

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.

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.

Nothing about this makes any sort of sense.

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.

Mike Briggs’ points above make a lot of sense.

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.