Ask The Editor

September 8, 2009

How to understand the objections just filed in the Google settlement

The time has now passed for authors to opt out of the settlement. However, we can still hope that Judge Chin will decline to approve it in its current form.

Today was the last day to file objections and briefs, and those that were filed mostly focused on an issue originally raised by attorney-author Scott Gant: that most of the authors who will be bound by the settlement terms were illegally drawn into the class.

Let me, as a non-lawyer, explain my understanding of this, as simply as I can.

On the same day the settlement was announced, the Authors Guild amended the class action complaint to immensely expand the Plaintiff (allegedly wronged party) class from where it had been: all those with a copyright interest in a book in the U Mich library, where Google had scanned all the books.

The newly amended complaint, which coincided with the announced settlement,  included in the Plaintiff class EVERYONE with a U.S. copyright interest in a book, not just those whose books had been infringed.

Why do Gant and most of the current crop of objectors claim this is illegal?  Because a lawsuit’s Plaintiffs have to have a valid complaint against a Defendant. Those whose books were not scanned by Google have no valid legal complaint. They aren’t affected.

The effect when the Authors Guild amended its complaint to expand the Plaintiff class was to sweeten the deal for Google, the Defendant. It gave Google the future right to scan books it hadn’t yet scanned and to circumvent copyright law (and, apparently, privately negotiated book contracts), and gain significant future control of all books.

In exchange, the Authors Guild got whatever it negotiated from Google, which we don’t (and probably won’t) know.

That’s a commercial transaction, not a settlement of a legal claim. And that’s the theme running through objections filed earlier by Scott Gant and today by Microsoft, Yahoo, Consumer Watchdog,  and a group of authors called the Bloom objectors.

Shorter explanation of the objections’ basis: it’s as if Search Engine X infringed my copyright but not yours. But in settling the case, I made a deal with Search Engine X that it could have your future rights along with mine, in exchange for something else I wanted.

Do you think it would be fair for you to be forced into such a deal? I don’t either. And, aside from a dozen other arguments that could be made, I hope that Judge Chin recognizes the inherent injustice of such a deal and stops it right there.

- Anita Bartholomew

September 3, 2009

Before tomorrow’s opt-out deadline: What you need to know about the Google settlement

Tomorrow is the deadline for opting out of the Google settlement.

Here are some bits of information that may help people better understand the broad strokes — and why you’re better off opting out:

1- You are not shut out of the Google Book Search program if you opt out of the settlement. You are only shut out of the bad terms of the settlement. You can still participate in the Google Book Search program as an individual author, retain all your rights, and remove your books at any time.

2- You will not get 63 percent of the proceeds under the settlement for any use of your book by Google. That 63 percent goes to the Book Rights Registry which skims an unspecified and unknown amount off the top for expenses.

3- The remainder of that 63 percent, once the Book Rights Registry takes its unspecified and unknown share, goes to your publisher which sends a portion to you based on its interpretation of your contract. If it interprets your contract wrongly, your only recourse is binding arbitration, a process which favors major players, not little guys.

4- The settlement terms will obviously conflict with some book contract terms. It is unclear how this will be resolved. As the settlement is written, binding arbitration is your only option if you disagree with a publisher’s interpretation. This issue has some lawyers scratching their heads because of the uncertainty that’s bound to result.

5 – It’s a pretty good deal for large publishers, for the above and other reasons.

6- Based on published quotes from its leadership, the AG appears to have initiated this class action with the goal of negotiating a settlement that would result in Google getting rights to books that it otherwise could not get. (See author/attorney Scott Gant’s objection which is a pdf file).

7- The AG will control half the Book Rights Registry and will choose half the board members. The AAP will select the other half. This deal with Google gives these groups future security at a time when the future of publishing is anything but secure.

- Anita Bartholomew

August 11, 2009

Authors Guild sends authors another misleading letter about Google settlement

You have to wonder why, if the Google settlement is as good a deal as the Authors Guild keeps insisting it is, the honchos over there keep misleading their members when attempting to gain support.

Any settlement worth signing onto doesn’t need to be spun, finessed, or made to appear something it isn’t. If it’s worth signing onto, you simply list the actual benefits. You don’t pretend authors will get benefits that the settlement doesn’t, can’t, and won’t give them.

Although I was once a member of the Authors Guild, I am no longer. But friends do forward the emails they get. And I found the text of that email, inviting all authors and agents to a free teleconference this coming Thursday, on the AG website.  I don’t have the time to fact-check everything, as it would require me to dig through the settlement agreement again, but here are some obvious whoppers I spotted that required no new research:
AG CLAIM: the only way to ensure that your book will not be completely removed from the database, and thus benefit from Google search, is not to opt-out.

AB RESPONSE: False. As I’ve written ad nauseum, just sign up for the Google Books Partner Program and you will be in Google search — but you won’t be locked into the settlement terms.

AG CLAIM: The settlement offers a 63/37 split** in your favor … It’s a good deal. For comparison: Amazon buys e-books at a 50% discount from publishers. If you’re a self-published author, the split is 35/65 — in Amazon’s favor. Newspapers face a 30/70 split — again in Amazon’s favor — for electronic distribution of their content.

AB RESPONSE: Misleading. Here’s what the AG isn’t telling you about the above “good deal.” You’re not getting 63%. The Book Rights Registry takes delivery of that 63 percent, and takes its cut off the top. The BRR’s cut is unknown, and unspecified in the settlement. Estimates are that it can be anywhere from 20 percent to 50 percent of that 63 percent. Whatever is left after the BRR takes its cut goes to the publisher which then parcels out your share to you. What will that share be? Whatever your contract says it is.

Not exactly sounding like a 63 percent share any longer, is it?

AG CLAIM: Want to negotiate a different deal with Google?  Turn off all display uses of your works and go for it.  At any time.

AB RESPONSE: Huh? You can’t re-negotiate the terms through the settlement, of course. Those terms are set in stone if/when the settlement is approved. Unchangeable. Approved settlement = done deal.

So, I wondered what on earth the AG was up to with the above claim.  As I keep saying, you certainly can get better terms through the Google Book Partners Program if for no other reason than you won’t have the BRR as a silent partner, skimming off the top. (Fun fact: 50 percent of the BRR will be appointed by the AG).

The Google Books Partner Program is the only current way to get a better deal from Google in its book search and scanning venture, to my knowledge. And you can be in both the program and the settlement. Here’s what the settlement FAQ says:

Can I participate in both the Partner Program and the settlement?
Yes. You can choose to participate in the settlement and its revenue models for one or more books even if you are already a participant in the Partner Program. The Partner Program agreement, if applicable to a particular book that is also included in the settlement, will govern Google’s treatment of that book to the extent the Partner Program offers the same uses or revenue models as the settlement and any prohibitions imposed by the Partner Program agreement on Google’s uses will apply.

So, the only thing I can figure, re its re-negotiation claim,  is that the AG will suggest, during its free conference call on Thursday, that you opt in, tell Google not to display your book, then sign up for the Google Books Partner Program.  But, if I’m reading the FAQ right, the catch is that, once you’re in the settlement, you’re stuck with the same terms, or as the FAQ says, the same uses or revenue models as the settlement.”

If that’s the strategy AG plans to offer in its “go for it” re-negotiation recommendation, my brain hurts just thinking of the convoluted reasoning.

Why on earth would you give up your right to sue if Google oversteps, bring in a partner who’ll take an unknown percentage of the proceeds, sign a hundreds-pages long agreement you probably don’t understand  … just to seek the better deal that you can only get outside the settlement?

Can’t wait to hear what they say next.

- Anita Bartholomew

July 1, 2009

Is it worth publishing? Then it’s worth paying for.

Kim Komando, in her cyber speak column, chirps about sites where you can “sell” your writing:

“A growing number of sites will help you turn your writing into cash. You don’t need to be a professional writer to use these sites, but your writing skills should be above average.”

She then goes on to detail the sites she has in mind and points out that aspiring writers are paid about 50 cents at one of the sites, about $1 at another. No, that isn’t per word. These sites pay 50 cents for an entire article.

Why on earth would Komando promote “selling” your work for so little money, it won’t even buy you a Hershey’s bar?

Surely, she’d be insulted if someone offered her just 50 cents to write her USA Today column.

And you should feel insulted, too, when you read about sites that want you to provide your writing so cheaply, you might as well write for free.

Even if you’re an aspiring writer with no credits, you deserve more. If your work is publishable, it’s worth paying for at the going rate.

This is exploitation. Period. And Komando should know better than to promote the exploitation of other writers.

Apparently, though, she doesn’t know better — nor even, what she’s writing about. She includes Scribd in her list.

Scribd is a site where traditional and self-publishers can sell copies of their electronic documents and ebooks. In other words, it operates much like the Kindle store. There’s a big difference between selling copies of your work to consumers for $1 or more per copy, and giving away the rights to someone else to profit from your writing for $1, total.

Someone, please enlighten Komando.

- Anita Bartholomew

June 9, 2009

Pay the writer, damnit!

This, fair warning, is going to be more a rant than a typical post.

There are a number of “content providers” trolling the web, offering writing “opportunities” that are merely opportunities for the so-called content provider to exploit those who write.

Among these are Demand Studios, which had the audacity to send an acquaintance, who queried in response to their offer of writing work, a reply that included the following:

“As the articles get indexed by search engines and  build traffic, payouts increase. By the third month, average monthly payout per article is $1.24.”

Yes, average payout of $1.24 after three months. Amazingly enough, that means that writers may actually earn less than $1.24 per article.

And some writers are taking this!

Helium runs another of these exploitation rackets. My friend and colleague, Erik Sherman, decided to calculate what Helium may be paying its writers, based on the figures it makes public.

His estimates?

“The average story will make 80 cents.”

Do not write for these people. You are not doing yourself or your career any good and you’re actually making matters worse for other writers by driving down the perceived value of writing. I’m pretty sure most people could earn more begging on a busy city street than they would writing for one of these outfits and would earn about as much respect (because as soon as it comes out that you write for peanuts — hell, make that peanut, singular — you’ve established your value to future potential customers).

I don’t care if this is the first opportunity you’ve ever gotten to write anything for anybody. You’re worth more. Demand more. Don’t sell yourself or your talents so cheaply.

And this is for the cheapskates who are pulling this crap. Back in the 1840s, editors paid writers from $2 to $12 per page. How can you so shamelessly offer a fraction of what one could have earned about 170 years ago?

Listen to Harlan Ellison . And pay the writer, damnit!

- Anita Bartholomew

May 26, 2009

If you’ve been turned down by publishers, should you beome a publisher yourself?

We live in interesting times.

Advances are half or even a third of what they were a year or two ago. I’ve heard reports from colleagues who are accustomed to high five-figure advances for their non-fiction narratives and how-to books getting offers in the mid or even low four figures. And that’s if an author can even get an offer.

Fiction seems to be particularly difficult to sell at any price right now.

Filmmaker John Sayles’ agent failed to get a single offer on his latest novel.  Sayles has previously published acclaimed novels and is among Hollywood’s most accomplished directors and screenwriters.

The rejection of his latest manuscript drives home just how depressed the market is.

“This is really astonishing,” says Ron Hogan, senior editor of Galleycat.com, a website devoted to publishing news. “I mean, this is John Sayles! You’d think there would be some editor who’d be proud to say, ‘I brought the new John Sayles novel to this house.’ “

Anthony Arnove, Sayles’ literary agent, sent the novel out on a first round of submissions last fall, and recently sent it to another group of editors. His goal is to land a deal with a deep-pockets publisher who can promote the sprawling, epic tale about racism and the dawn of U.S. imperialism.

Sayles’ 1977 novel, “Union Dues,” was nominated for the National Book Award and the National Book Critics Circle Award. “The Anarchists’ Convention,” his comic short story about aging Jewish lefties, has become an American classic.

But Sayles’ earlier novels weren’t bestsellers and traditional publishers are looking for sure things. Nevermind that, as anyone who has ever browsed a remainder table knows, the sure thing doesn’t exist.

So, what should an author who has a good manuscript do? In my opinion, as traditional publishing opportunities shrink, and non-traditional opportunities expand, the best thing an author who is willing to bet on his or her own prose can do is become a publisher. I don’t mean that authors should send their manuscripts off to iUniverse or Lulu, pay a few hundred bucks, and keep their fingers crossed. That may seem an inexpensive option but it’s probably going to get you exactly nowhere. The cheap solution is actually an expensive one if nobody knows your book exists or wants to buy it.

Become a real publisher, if you have the time, money, marketing understanding, and willingness to work as you never have before for your book’s success.

More on what this means in terms of budget, planning, and everything else, in subsequent posts.

- Anita Bartholomew

May 13, 2009

Is Amazon becoming a publisher — or simply promoting its self-publishing options?

From its press release, announcing the new venture:

Amazon customers raved over “Legacy,” a self-published novel by 16-year-old Cayla Kluver, with customer review titles such as “loved it, loved it,” “rich lyrical tapestry and story” and “breathtaking in scope and execution!” Despite winning several prizes from literary groups and accolades like this from readers, Kluver’s debut novel achieved only modest sales. Amazon.com, Inc. (NASDAQ: AMZN) today announced a new program, “AmazonEncore,” to help readers discover exceptional books from emerging authors, such as the program’s first book, “Legacy.”

AmazonEncore is a new program whereby Amazon uses information such as customer reviews on Amazon websites to identify exceptional, overlooked books and authors that show potential for greater sales. Amazon then partners with the authors to re-introduce their books to readers through marketing support and distribution into multiple channels and formats, such as the Amazon Books Store, Amazon Kindle Store, Audible.com, and national and independent bookstores via third-party wholesalers. This summer “Legacy” will be revised by the author and re-issued as an AmazonEncore edition in print on Amazon websites around the world, in physical bookstores, as a digital download from the Kindle Store in less than 60 seconds, and via spoken-word audio download on Audible.com.

There’s no word on what Amazon means when it says it “partners” with authors. Amazon may, indeed be acting like a traditional publisher and offering advances, royalties, etc. But AmazonEncore may, instead, be a re-branding or expansion of Amazon’s current self-publishing tools. It’s not clear yet. But, what if Amazon is merely selecting certain self-published books for more favorable design, distribution and marketing treatment? And what if it’s using this as a marketing tool to promote its self-publishing arm?

That seems more likely to me — and, if so, appears to be a smart marketing move.

I hate to be a cynic but, stay tuned for the details.

- Anita Bartholomew

May 6, 2009

Speaking of Edgar Allan Poe …

The New Yorker has a fascinating piece about the man who is said to have invented the mystery novel (but who is probably better known for his horror stories). It paints Poe less as a visionary and more as a writer who made a point of capitalizing on the genre that was selling well in his day. He wanted to make a living as a writer of fiction and, as today’s writers often discover, that sometimes means compromising about what to write and how.

Here’s a snippet:

Poe went to New York, but, unable to support himself by writing, he left the city within three months, returning to Baltimore to live with Mrs. Clemm and little Virginia. He published his first story, “Metzengerstein,” about a doomed Hungarian baron, his gloomy castle, and his fiery steed. He won a prize of fifty dollars from the Baltimore Saturday Visiter for “MS Found in a Bottle.” One of the editors, who met him, later wrote, “I found him in Baltimore in a state of starvation.” In these straits, Poe wrote “Berenice,” a story about a man who disinters his dead lover and yanks out all her teeth—“the white and glistening, and ghastly teeth of Berenice”—only to realize that she is still alive. It has been claimed, plausibly, that Poe wrote this story to make a very bad and long-winded joke about “bad taste.” Also: he was hungry.

April 30, 2009

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

April 28, 2009

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

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