Authors Guild’s latest misleading statement on the Google settlement

Here’s what the Authors Guild sent to its members after Judge Chin granted an extension:

The court overseeing Authors Guild v. Google extended the time for authors and publishers to opt out of the settlement by four months, to September 4th (Judge Chin’s order). The fairness hearing will be on October 7th.

We don’t recommend opting out — this settlement is a good deal for authors, bringing their out-of-print books back to commercial life (while leaving the marketplace for in-print books alone, unless you and your publisher want to take advantage of the settlement’s programs for in-print books) — so this shouldn’t affect most authors. If you haven’t yet filed your claim, now is a fine time to do so. Go to www.googlebooksettlement.com and create an account to get started.

Let’s parse the above:

“We don’t recommend opting out — this settlement is a good deal for authors,”

No, it’s not. For past infringement, it pays authors a fraction of what they are entitled to under copyright law. For future use, it’s at best, a worse deal than authors can get on their own from Google. At worst, who knows? Most experts say that the terms aren’t clear.

“… bringing their out-of-print books back to commercial life”

You can both opt out and bring your out-of-print books back to commercial life via the Google Books Partner Program. You’ll get better terms (and probably more money) and, unlike those who stay in the settlement class,  you won’t give up any rights you now have under copyright.

“… (while leaving the marketplace for in-print books alone, unless you and your publisher want to take advantage of the settlement’s programs for in-print books) — so this shouldn’t affect most authors.”

The above is a false and misleading statement. The settlement will, indeed, affect most authors. If you are the author of a book that is still in copyright, and was published on or before Jan 5, 2009, you are subject to all the provisions of the settlement. Don’t take my word against the Authors Guild’s. The above link takes you to the FAQ at the Google settlement website. Being subject to the provisions of the settlement means, if you don’t opt out, several of the rights you now have under copyright law when dealing with Google will be erased.

The obvious questions are:

Why is the Authors Guild spinning the terms of the settlement — claiming that those whose books are in-print won’t be affected? And why won’t it acknowledge that authors can opt out and get a better deal from Google outside the settlement?

- Anita Bartholomew

Judge grants request for extension in Google settlement

Attorney Andrew DeVore had asked that the deadline for opting out or objecting be extended to September 7, 2009.  Although class action attorney Michael Boni asked that the extension be half as long, the judge has, apparently, ruled for the full four months:

In a surprise move, New York Judge Denny Chin today granted a four-month extension to a group of authors, led by Gail Knight Steinbeck, delaying the May 5 deadline to opt out or object to the Google Book Search settlement to early September. Although the order had not yet been made public at press time, sources confirmed for PW that Chin had granted the extension.

Google opt-out deadline still May 5th but court hears request for delay

From Publishers Weekly:

Last week, a group of authors and their representatives filed a request to delay the May 5 deadline. The motion filed April 24, by attorneys representing The Palladin Group for John Steinbeck and Thomas Myles Steinbeck, Catherine Ryan Hyde, The Philip K. Dick Testamentary Trust, Arlo Guthrie, Michael W. Perry, Eugene Linden, and James Rasenberger, asked the court for a four-month extension, with October 7 marking the new opt-out deadline, and with the hearing, now set for June 11, to follow at the court’s discretion.

Meanwhile, in response, attorney for the publishers’sub-class, Michael Boni, said the authors’ complaint was without merit and asked the court to reject it. However, Boni, said that “independent of” the authors motion, “plaintiffs and Google are amenable to a 60-day extension.”

The article goes on to quote New York Law School professor James Grimmelman saying that an extension is unlikely to be granted while the attorney presenting the request for the delay, Andrew DeVore, said that such a delay was necessary. DeVore pointed out that the Google settlement is “not a typical class action settlement,” because it’s not primarily about compensation for past injury but about future rights.

I’d point out that while the Google settlement is, indeed, not typical for class actions, it took its lead from an earlier class action that grabbed future rights from all affected writers for periodicals, essentially overriding copyright law by granting the Defendants future rights in all the works affected. In that class action, too, writers were “represented” by class action attorney Michael Boni, supported by the Authors Guild.

To haul out an old cliche, with friends like Boni and the AG, writers really, really don’t need any enemies.

- Anita Bartholomew

What Dan Brown can teach us all (don’t laugh) about writing

Dan Brown’s follow-up to his The Da Vinci Code – which was the bestselling hardcover novel of all time –  is set to release in September.

First, let’s get the issue of writing skill out of the way because, if you’ve read The Da Vinci Code, and you’re a writer, you probably believe you can out-write Dan Brown with half your talent tied behind your back.

But, Brown teaches us that there is more to being a successful writer than having a way with words. It’s Brown’s stories that have made him a success, along with his expert use of tension.

The Da Vinci Code appeals to readers who enjoy a cliffhanger at the end of every chapter. That’s what Brown delivers. He also lets readers figure out the various mysteries a page or three before his protagonists do, making the reader feel satisfied in his or her deductive skills. And perhaps most important to his success, Brown seems to reveal intriguing secrets hiding in plain sight.

In other words, he has nailed a winning commercial formula. All he left out were interesting characters and appealing prose.

- Anita Bartholomew

Where to get a better deal than the Google Settlement? From Google.

Several writers I know have responded privately to my posts about the Authors Guild’s settlement with Google saying that they will stay in because they believe that the future of the book is electronic. And they want their books to be part of that future.

They’ve been misled into believing that those are their only choices: take the deal or have your work erased from cyberspace.

Wrong.

You can make a better deal. Google has one that’s ready-made for you, outside the settlement.

First, opt out of the settlement. Then, if you want to make your book accessible via Google, on the web, join the Google Books Partner Program.

Your books will appear where they would have appeared if you opted in to the settlement. But this way, you keep all your rights. And you can even add a “buy this book” button to the display page of your book if you offer the book for sale at your own site.

Remember: Google wants to scan your books. Just because the class action attorneys gave Google all sorts of extra rights (taken from you), doesn’t mean you have to roll over and play dead. Turn down the bad deal. Take the better one offered by the Google Books Partner Program.

“The Google Books Partner Program is a free marketing program that enables publishers and authors to promote their books online, through Google Book Search. By submitting a digital or physical copy of your book to be displayed online, you’ll make it discoverable to Google users from around the world.”

And yes, you can earn income from this –  Google shares the majority of its ad revenue with you –  and it’s probably more than you would get through the settlement. That’s because, in the Partner Program,  you deal directly with Google,  instead of with the Books Registry being set up to administer payments from future revenues via the settlement.

Use this form to sign up. You’ll need to mail a copy of your book for scanning but you can cancel your account at any time.

Here are some of the benefits of the Google Books Partner Program vs the Google Books Settlement:

1. You send your book to Google and request that Google scan and display the book but, unlike opting in to the settlement, you can withdraw from your relationship with Google at any time.
2. You get the majority of the revenue from ads appearing on the same page as your book. Contrast that with the settlement where, although you get 63% of the profit, that may be less than you believe. Some experts, including literary agent Lynn Chu, speculate that as much as half the revenues will be used for administrative costs of the registry before you see your share.
3. You can include a “buy this book” link as long as it links back to your site, not that of a third party, for purchase. So,  if a preview hooks a reader’s interest, you get to sell the physical copies of your book.
4. In the Google Books Partner Program, you don’t give up any of the rights, written into copyright law, that you now have.
5. Unlike the settlement, you are not locked in for the life of the copyright.
6. If something goes sour with Google, you aren’t forced into binding arbitration. You retain all your rights to sue in court.

- Anita Bartholomew

The Register of Copyrights weighs in on Google settlement

Marybeth Peters, Register of Copyrights (the person at the United States Library Of Congress in charge of the system that maintains records of who owns which copyright), has many things to say about the Google settlement. She was the first speaker at the conference Columbia Law School held in March on the settlement. The video of the conference is online.

As I was able to pause the video in order to transcribe parts of her speech, I learned (and will share) a great deal about her views that I haven’t seen reported elsewhere.

The first point she made, and the one she returned to many times, is that she’s troubled by the use of class action lawsuits to grab future rights because they are, in essence, legislation via litigation:

“I do believe that class actions generally look backward and settle infringements that have been in the past. And typically, when you go forward, it’s typically the prerogative of Congress, the legislative branch, to decide what the rules should be. And when they do that, they think of things like, ‘Are we meeting our treaty obligations?’ ‘What about the public interest?’ And everybody has an opportunity to be heard.

“And the question is, when you have a private agreement where there are private solutions that are in the nature of legislative action, resulting in something that would be a legislative action, is that a good thing?”

But does this settlement (and the earlier one, granting licenses by default to the defendants in the case now before the Supreme Court, Reed Elsevier v. Muchnick, No. 08-103) really change copyright law? Yes, by creating exceptions to the law that encompass almost all of the literary works that would be subject to it.

And the way such settlements change the law is particularly troubling. The infringers, i.e., the wrongdoers, the ones who should be paying steep penalties to deter them from future wrongdoing, always come out the winners.

Peters paraphrased the analysis of the Google settlement by Brewster Kahle, the creator of the online Wayback Machine:  it creates new copyright laws and a new payment system, all to benefit a single monopoly, for access to the collective books of mankind.

Her own concerns about the agreement appear to mirror Kahle’s.

“One thing I do know is that the legislative process is what the Constitution had in mind with regard to copyright policy. There is a balance between encouraging creativity and rewarding authors. And it gave that power to the Congress. And the Congress does act, sometimes slowly, sometimes well, sometimes, not so well. But that’s the Constitutional balance.”

Peters also complained that there are many unanswered questions and the possibility of unintended consequences. (Several other speakers at the Columbia Law School conference, all experts on copyright, said they were confused about what the settlement really said).

What was clear is that the vast future license for Google troubles the person in charge of copyrights for the U.S.

It should trouble us all.

The above is part 4 of a series of blog posts on the settlement reached between Google, the Authors Guild and the Association of American Publishers to settle a copyright infringement case related to Google’s unauthorized scanning of books.

- Anita Bartholomew

Google settlement, part 3: Authors Guild’s false information

My friend Pat McNees runs a website with good information for writers and editors. She recently posted links to various opinions about the Google settlement. I have one quibble with her section on this topic: she implies that you can trust the word of Paul Aiken, executive director of the Authors Guild.

“If you were alarmed by Lynn Chu’s piece in the Wall Street Journal (Google’s Book Settlement Is a Ripoff for Authors: ‘Why allow a single publisher to throw out a functioning copyright system?’ ) be sure to read this letter to the editor from Paul Aiken, executive director of the Authors Guild: The Google Book Deal Will Help, Not Hurt, Authors, which points out essential errors in Chu’s piece.”

Most authors, editors, and agents I know, like Pat, are willing to trust Aiken’s word. If they had studied the settlement with skeptics’ eyes, and consulted with attorneys, they more likely would trust Chu.

First, let’s deal with Aiken’s whopper:

“Ms. Chu likes the marketplace of in-print books that authors and publishers depend on. So do we: The settlement leaves it alone. Authors and publishers of in-print books will be able to participate in the settlement’s programs, but only with rightsholders’ express permission.”

I can’t imagine why Aiken would make such a patently false statement about a central issue. It’s too long to be a typo. What on earth was he thinking?

“Express permission” means “explicitly stated permission.” Any author reading Aiken’s words is likely to accept those words at face value and assume that, without his or her explicitly stated permission, he or she will not be subject to the provisions of the settlement.

Wrong.

Here’s how you get to “participate in the settlement’s programs.” Do nothing. Bam! You’re in. That’s not “express permission.” That’s license by default.

But it’s worse than that because, although the Google settlement gives authors some control over display and other incidentals, if you do nothing, and allow yourself to be lulled by Aiken’s reassurances, you’ve also agreed, by default, to mandatory arbitration (a huge issue that Chu brought up in her op ed but that Aiken never addressed).

Here’s the gist of what you need to know about arbitration: mega corporations love it because they almost always win in any dispute:

“The fine print associated with service agreements from credit card, wireless phone, Internet access, and other service contracts is increasingly likely to include a clause that removes contract disputes from the legal system, subjecting them instead to binding arbitration. Superficially, arbitration sounds like a great way to settle disagreements while avoiding the fees and animosity associated with legal action; arbitrators ostensibly offer an impartial decision quickly and painlessly. But a report issued by the consumer watchdog group Public Citizen portrays the process as heavily slanted towards business, and a Kafkaesque nightmare for individuals.” [emphasis mine - Anita Bartholomew]

AP vs web aggregators, part 2: Could newspaper failures have been prevented?

After writing the earlier post on the AP’s claims of copyright infringement by news aggregators and others, I found this article in Business Week. And it says pretty much what I surmised about the AP’s motives:

In a largely overlooked aspect of its battle with Google and other aggregators of news content, the AP plans to build an online destination where it hopes Web users can easily find and read its news stories and those of other content creators. When it comes to compiling online news, the AP wants to out-Google Google. The Web search giant “has a wacky algorithm” for collecting news stories, AP Chief Executive Tom Curley says in an interview. “It does not lead people to authoritative sources.”

So, the AP does intend to compete with Google News or maybe, try to shut it down (fat chance).

Let me say that, as a writer and editor, I am horrified at how many newspapers have failed (and still may fail). But the AP’s current position highlights the awful truth:

It could have been prevented.

All the news organizations own the rights to display their content on the web. But they never devised sensible business models for doing that. Even after Yahoo, Google, MSN, Drudge, and everyone else figured out how to profit from linking to news on the web, those who were generating that news stood around, picking their noses.

Now, late, late, late to the party, the AP decides that it will become an aggregator too, with all its subscriber partners. But, competing against Google News et al is an outrageously difficult feat. (My home page is set to Google News; many cable and DSL providers set users’ home pages to their own news aggregation sites by default).

So, yes,  the AP probably now recognizes that it should have taken advantage of its own assets the moment others discovered value in them. But since it didn’t, and it can’t turn back the clock, it cries copyright infringement, hoping to shut down or maybe slow down the established aggregators and get its own go-to news site up.

Sad, stupid, and infuriating to think, as we watch this melodrama, that possibly, news organizations themselves could have become the equivalent of Google News, years ago, and saved the news.

- Anita Bartholomew

AP vs. web aggregators: Piracy? Or free advertising?

The Associated Press (AP) is a news organization, owned cooperatively by other news organizations. News gathered by its reporters is distributed by subscriber news organizations: newspapers, broadcasters, and websites.

You’ve read plenty of AP stories although you may not have noticed that the AP was the source.

But, as newspapers die a slow, painful death, the AP is feeling the pain along with them. It’s decided that this isn’t death by natural causes. Nope. It’s slow poisoning. And the AP is pointing a finger, without actually naming names, at the web.

Okay, it’s true. The availability of content on the web is killing newspapers and nobody knows what to do about it. But the reason isn’t because content is free to readers. Nobody ever got rich from selling the paper itself. What made newspapers viable were the ads they sold. Classified ads, especially, that they could sell at huge profit in local areas because they were the only game in most towns. Then came Craigslist and there went most of the classified income.

Display ads, the other income generator, are still sold by news organizations and others on the web. But advertisers aren’t willing to pay the same rates as they do in paper media. A media honcho I spoke to about this said that, in the move to the web, advertising dollars became dimes.

So, the problem isn’t so much that the web exists or that content on the web is free. It’s that advertising is cheap (display ads) or free (classified ads).

That’s the poison.

Which is why the antidote that the AP has come up with isn’t the answer. It wants to crack down on what it calls copyright infringement by those who link to its content, maybe borrowing a headline and a line or two, without subscribing to the content.

In other words, it seems to be calling Google News, Yahoo News, Drudge, and various other web search engines, news aggregators, and websites, infringers (I say, seems to be,  because the AP isn’t naming names, just blustering about links).

But is linking and snipping actually copyright infringement?

The Fair Use section of copyright law is fuzzy but here’s a relevant portion:

…reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The problem with the AP’s claims of infringement are that, while Yahoo News, Drudge, Google News, et al, are commercial enterprises, reprinting a headline and a teaser snippet such as a sentence or two, isn’t substantial. But the bigger problem with AP’s claim is #4: the effect of the use upon the potential market.

Search engines and news aggregators that link to stories actually drive traffic to the copyright owners’ websites with those teasers and links. Google claims that it provides about a billion clicks a month from its links to newspaper articles. Clicks from other sites aren’t going to match Google but you get the point. The AP isn’t losing business from those clicks, it’s benefiting from the free advertising.  Aggregators and search engines are helping consumers find news that they wouldn’t otherwise find.

But the AP can’t make advertisers pay more on the web unless it becomes the go-to destination for all those searching for news on the web.

If that’s the point of this tantrum, it isn’t going to help the AP in that quest. It needs to figure out why people who are looking for news aren’t going to the AP and its news organization member sites first, rather than heading to the sites that provide links to the AP’s content. If it can’t do that then the AP’s proposed antidote to the web’s poison is actually more poison. And that self-administered dose could finish it off.

- Anita Bartholomew

Google Settlement: is it a bum deal? Part 2

A number of writers I know believe that the Google settlement is the best way to get their old books back into circulation. Their thinking is that, once the book is on the web as part of Google Books, the vast library of texts that Google will make available in various ways, new readers may find these old books. And the authors may realize new profits.

Let’s analyze the above and figure out whether it makes as much sense as some writers believe.

Q: Is having your book scanned by Google the only way to get it out on the web and available?

A: No. If you still have a word processing file of your manuscript you can publish your book yourself on smashwords with just a few keystrokes, in an electronic format, and offer it for sale. You’d get 85 percent of the profits from smashwords versus the 63 percent that Google is offering. And if you got a better deal elsewhere, you could take it. Contrast that with Google’s book scanning venture which requires you to enter into a binding 100+ page contract (the Google settlement) that nobody has yet thoroughly analyzed on your behalf.

Q: What’s wrong with opting into the settlement (signing the “contract”)?

A: I don’t believe that anyone has adequately parsed what’s in the settlement agreement or what its ramifications may be for the long-term. I don’t typically sign contracts without knowing whether the terms are favorable to me. Do you?

Q: But wouldn’t my book get more attention if it were part of the Google library of scanned books?

A: Not necessarily. Google, the search engine, finds material on the web for searchers based on keyword searches and ranks the material it finds based on various other criteria. As your original manuscript, if uploaded, would include all the same key words that your scanned Google Books version would, your own book wouldn’t necessarily be at a disadvantage.

Q: But I know nothing about publishing on the web. Why not just leave it to Google?

A: Again, see smashwords. You don’t need to know how to publish. All the instructions are there, plain and simple. Even so, you might decide that Google is your best option. But it’s important for this to be an informed choice. You need to weigh the costs against the benefits of agreeing to a 100+ page contract (the settlement), which is what you’d be doing in order to participate.

Q: Do I have to decide right now whether to participate?

A: Unfortunately, yes. You only have until May 5, 2009 to decide to opt out. If you don’t, you’re in. The decision is made for you. But you can opt out now – and you may be able to opt in later, according to page 33 of the settlement notice:

“If you opt out of the Settlement, you will not be eligible for a Cash Payment or to participate in any of the revenue models under the Settlement. You will, however, have the right to bring your own lawsuit. In addition, even if you opt out of the Settlement, you may still be able to contact the Registry or Google at a later date to attempt to negotiate a separate deal for inclusion of your Books in any of the Settlement Agreement programs.”

That “Cash Payment” you won’t be eligible for is all of 60 bucks. (To help you judge whether you believe this is an adequate payment, see my earlier post for what the minimum statutory penalty is for willful infringement). And you only get the 60 bucks if Google has already scanned your book. If not, you get nothing. Zip. Is that a sufficient incentive for you to opt in?

Q: Can I opt in now and opt out later?

A: Nope. You may be able to change some of the terms of how your book will be displayed or other incidentals but you will have agreed, by default, to the terms of a 100+ page settlement.

Again, do you know what those terms are? Has anyone analyzed them on your behalf and given you all the pros and cons? And have the pros been so strongly in your favor that the cons seem inconsequential?

If you haven’t done that analysis, and you’re gung ho to go ahead anyway, I’d like some of what you’ve been smoking.

- Anita Bartholomew