Ask The Editor

April 8, 2009

Google Settlement: Is it a bum deal? Part 1

If you’re an author of a book or if any writing of yours has been published in a book as part of a collection, you’re a member of the class in the Google settlement. This settlement is meant to resolve the class action lawsuit that the Authors Guild and the Association of American Publishers filed against Google.

The settlement has been touted by the Authors Guild as a great win for authors. Is it?

Well, not exactly.

There are too many problems with it to list in one post so I’ll take them up in a series of posts. First, compensation for past infringement. If Google has already scanned your work without permission, under the settlement, you get just $60 for that infringement, unless you opt out (which, if your book is still selling in print, I’d recommend you do now. The deadline is May 5.)

Is $60 adequate compensation when a mega-corporation scans and republishes your work without your permission? Google claims that its scanning constitutes fair use but it’s unlikely that any court would agree. Fair use is a permitted use, under very limited circumstances, by someone who doesn’t own the copyright. Here is the relevant part of section § 107 of the copyright statute:

…the fair use of a copyrighted work , including such use by 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.

I’m not a lawyer but the guys at Google have plenty of them. My guess is that it would be very difficult for any lawyer to argue with a straight face that Google’s use is fair use. That’s because its scanning specifically falls on the wrong side of at least three of the four tests above. The purpose is commercial.  The amount copied very often is the “heart of the work” which courts have repeatedly found to be too substantial to be fair use, even if the entire work isn’t copied. And the effect on the potential market for the work is vast. If you can find what you want in a book by reading a portion of it online, through a Google book scan, you won’t have a reason to buy the book.

So, if it’s not fair use, and if it would be difficult for any lawyer to make a fair use argument with a straight face, given the above, what is it? It can only be either fair use or infringement, which is what the class action lawsuit is all about.

The statutory minimum penalty for infringement is $750. That penalty can go up to $150,000 if a court finds that the infringement is willful.

Do you believe that a court would find that Google willfully infringed the copyrights of all the books it’s scanned without permission?

And, if you do, do you believe that you should settle with Google for just $60 and, in effect, sign a contract of 100-some-odd pages about what Google can do with your work in the future and what your (now limited) rights would be?

Only you can decide what’s right for you. But, here’s the thing. Google wants its scanning operation to be an ongoing venture. So, there really isn’t any need to just let this happen if your head is spinning just trying to absorb all this. You can say no to Google and not lose anything except that 60 bucks in settlement money (assuming Google’s already scanned your book — if it hasn’t, you get nothing).

But what about the future? Shouldn’t you want Google to scan your book so that yours will be available on the web along with every other book? There are better ways to get your book on the web, without having to make Google a partner. But that’s for another post, coming shortly.

– Anita Bartholomew

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6 Comments »

  1. […] 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 […]

    Pingback by Google Settlement: is it a bum deal? Part 2 « Ask The Editor — April 8, 2009 @ 7:30 pm | Reply

  2. The Author’s Guild originally sued Google for violating copyright by scanning entire books so “snippets” could be displayed in Google Book Search. Google and the Author’s Guild then used this class action suit to grant Google a much broader set of rights, allowing Google to sell entire books as e-books, as print-on-demand books, and as parts of anthologies Google puts together. Google gets to sell all those books plus ads. The Author’s Guild gets to run the Registry to keep track of all those books–and to profit financially from running it. The copyright holders who do not opt out of the Settlement by May 5, 2009 have to pay an undisclosed amount to maintain the Registry, with no guarantee of how much income they will ever derive from the Settlement. Even the $60/per copyright violation is an estimate based on the number of claims.

    I find a great deal of the conduct re the Settlement to be disingenuous. Google’s PR includes co-opting publishing lawyers to promote the Settlement. I tried to get one of them to write a letter for me to withdraw, and gave up when all I got was constant put-offs about writing the letter, accompanied by promotion designed to get me not to withdraw.

    I find most of the Author’s Guild and Google’s statements to be disingenuous. They produced a 300+ Settlement document that is extremely difficult to wade through, then they “interpret” it by saying things like “You can always stay in and just opt your books out of Google Book Search.” (If you are a copyright holder, READ THIS ENTIRE DOCUMENT. Or hire a genuinely neutral copyright lawyer to read it and advise you.) Actually, that is only as long as the book is still in print–a determination made by Google, not the copyright holder. For example, the Settlement says print-on-demand books can be declared “out of print,” by criteria not defined in the Settlement. Once Google declares the book “out of print,” you cannot keep them from selling it except by appealing to their arbitration board. And guess what, even if the arbitrators rule in your favor, Google gets to keep selling the book for another 10 months after that. The basic theory is that if your book is not selling well–by Google’s standards, not yours–Google gets to seize control of publication. They “allow” you to publish your own edition simultaneously. But if Google sells virtually free ad-supported e-books and free library views, and your print book costs, and they’re bigger than you–how can you compete?

    Comment by Frances Grimble — April 9, 2009 @ 9:48 pm | Reply

  3. It doesn’t seem right that Google is doing this.

    Comment by Jennifer Margulis — April 16, 2009 @ 1:12 am | Reply

  4. […] 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” […]

    Pingback by Authors Guild ’s latest misleading statement on the Google settlement « Ask The Editor — April 30, 2009 @ 5:59 pm | Reply

  5. For those who come to this site late, the mandatory ‘opt-out or Google will opt you in’ date has been delayed four months from May 5 to September 4, 2009. I was one of seven authors who sent a letter to the court involved in this settlement requesting that four-month extension. The judge granted our request on April 28.

    That four month delay may well prove critical. One of the least known facts about this settlement is that it applies to U.S. copyrights automatically assigned by treaty to writers in almost every country in the world (as a minimum, every country with a Berne convention agreement). Opposition to the settlement is already strong in Germany, with politicians as prominent as their chancellor expressing opposition. German sources tell me that it is spreading to Sweden, and perhaps soon across Europe. Given the size of the U.S. book market, British writers, as well as those in Australia, Canada, and New Zealand should be particularly concerned, since what they write is in English and often sells well here.

    I’ve created a web page with as many of the principal legal documents in this dispute as I have been able to find, along with links, particularly to news and editorials in Europe. You can find it at:

    http://inklingbooks.com/googlesettlement/googlesettlement.html

    –Michael W. Perry, Seattle

    Comment by Michael W. Perry — May 12, 2009 @ 3:27 pm | Reply

  6. The proposed settlement sucks, for some obvious and soem less obvious reasons. The question is whether to (A) opt out or (B) allow oneself to be opted in by default, and object.

    As an *individual*, there’s a compelling case to opt out, as you have articulated. But if everyone who recognizes the problems with the proposed settlement opts out, no one will raise authors’ objections with the Court, and those aspects of the settlement will probably be approved. (I think the Court will probably reject the current proposal, becuase of soem of the antitrust objections. But it isn’t clear if there will be another opportunity to opt out of a revised settlement proposal.)

    Of course, writers’ organizations should mhave reaised these objections as amici, freeing individual writers from the need to do so. but they didn’t.

    So the issue for me is whether there is enough chance, if we object, to get the proposal rejected entirely (authors would fare much better if the case went to trial, since we would almost certianly win statutory damages without having to give up any future rights) or sufficiently modified to be worth taking to risk of remainign opted in order to raise objections.

    Comment by Edward Hasbrouck — July 29, 2009 @ 2:47 pm | Reply


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