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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