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September 9, 2009

ASJA, NWU, argue against their own Reed Elsevier v. Muchnick settlement in Google objection

This is pretty amazing.

As some of you know, I am one of the objectors to the class action settlement reached by ASJA, NWU and the Authors Guild with Reed Elsevier and other databases and periodicals publishers. There, as in the Google case, large corporations had infringed the copyrights of a huge number of writers.

My objection in that earlier case was simple and mirrors the reasons I’ve protested the Google settlement. The writers’ organizations — ASJA, the Authors Guild and NWU — agreed to hand over, to the Defendants, the future rights of anyone who didn’t file a claim or opt out.

(See the Tasini case for the genesis and a bit of background; also see Irv Muchnick’s blog, which outlines every move since,  in excruciating detail).

Defendants also got the only thing they should have been given, what Defendants normally get in a settlement: release of the claims of past wrongdoing.

I objected to the theft of the rights of absent class members, first to the leadership of ASJA and then, when I could not get them to budge, to the court.

Fast forward to yesterday, and ASJA as well as NWU (as part of a group called the Bloom objectors) have filed an objection to the Google settlement.

Their key argument?

“… after approval, Rightsholders will be deemed to have granted a license by virtue of doing nothing.”

In other words, ASJA and NWU, both of which once agreed to give away, to Defendants in the earlier class action, the future rights of periodicals writers who fail to opt out or file claims, now object to giving away the future rights of book authors who fail to opt out or file claims.

ASJA’s aggressive support for what I saw as theft in the Freelance settlement is the primary reason I resigned from that organization. That was no small thing for me. I’d been a very active volunteer on the First Amendment  and other committees, and had served on the board.

I’m glad to see that ASJA, under the new leadership of Salley Shannon, finally appears to understand that it’s unethical to bargain away the rights of some writers in exchange for better terms for the writers you represent.

Better late than never.

– Anita Bartholomew

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

August 7, 2009

Where are the responsible adults? Certainly not in the newsroom.

Yesterday, a mob (no other word for it) of misinformed, angry people who, when interviewed, said they were part of a group formed by Glenn Beck, shut down a heath care reform town hall in Tampa.

The local NBC television affiliate, when reporting on this, gave no context on what’s behind such events. Instead of analysis, the station just showed angry demonstrators and then said, go to our website and give us your opinion.

Give your opinion? Based on what? Zero reporting of what inspired the demonstrators? Zero reporting on whether that inspiration had any basis in fact?

So, why should anyone be surprised that the situation is now escalating and, on Twitter, an anti-health insurance reform leader is telling fellow protesters to bring guns to use against union leaders and community organizers at subsequent town halls?
When American television news became infotainment and ratings trumped all, we lost an important means of educating people. Almost nobody is well-informed in this country, despite making the effort of watching so-called 24-hour news stations. CNN, calling itself an all-news network, hosted Glenn Beck until he was wooed away by Faux News, and still hosts the race-baiter Lou Dobbs!

With the simmering racism that’s stoked by Beck, Dobbs, and others, we have a populace, or a large swathe of it, that’s about as ignorant and probably close to as resentful as the poor undereducated masses of some oil-rich countries. Over there, they believe bin Laden. Over here, their American counterparts believe Glenn Beck, Sean Hannity and Rush Limbaugh.

As a result, many are nursing pseudo-grievances that can and do lead to violence.

And now, we have the former Republican VP candidate, stirring the flames, crazily claiming that the president’s “death panel” wants to euthanize her Downs Syndrome child.

All of the above are acting in the service of the health insurance industry so insurers can keep their near-monopolies in their respective areas, and suck the lifeblood out of the very people they’re manipulating into hate and potential violence. But the mainstream news media won’t report that. Instead, everything is treated with so-called balance, with opportunities for he said/she said, as if there were no actual truth to be uncovered, just opinion that you form based on the words of flacks and then, go post on the TV stations’ websites.

This insanity is the fault of news executives who care nothing about fact and everything about ratings. They hire industry mouthpieces and nutcases who can manipulate the ignorant into a frothing frenzy.

Is there a Cronkite in the house? When will the mainstream media finally stop playing games and tell it like it is? Or are they going to wait until those twitterers show up with their guns and start blasting away?

– Anita Bartholomew

August 5, 2009

Why writers shouldn’t bet their careers on magazine writing, part II

Article fees are stagnating at best. Numerous magazines have lowered their per-word rates. I hear reports all the time from  writers that magazines assign an article at, say, 1,000 words but demand extra reporting that can require the writer to up the submitted word count by 50 percent or more, with no extra pay.

Writers, brace yourselves. This is your future if you continue to bank on magazines. Magazines were hurting before the economic downturn and you can’t assume that the situation will reverse once the economy stabilizes. See this article from Min on the prospects for consumer magazines — or simply read the following sobering excerpt:

Magazines did not come into the recession from a position of strength, with a [Compound Annual Growth Rate] at a meager 1.1% from 2003 to 2008.

Virtually all of the main revenue drivers for this industry are being depressed by a shifting media economy and digitization, such that magazine advertising will decline 15.6% in 2009 to $10.53 billion and a [Compound Annual Growth Rate] of -6.6% for the 2008-2013 period. This will leave the ad spend on magazines at $8.87 billion in 2013, the lowest level since 1995.

Ever-shrinking ad revenues mean that articles fees must also continue to shrink.

And for those who say, “no problem, I’ll write for the web,” I have to ask: haven’t you noticed that most websites pay less than even the struggling magazines? While some web publications pay at least something, too many are paying so little, the fee offered is an insult. And you can’t pay your bills with the proceeds  of insultingly low fees no matter how quickly you write.

So, what’s left?

My guess is that the writers who continue to make a living from writing will be writing books. Some will get traditional publishers. Some will publish their own books as book publishers also tighten their budgets.

The Espresso Book Machine, or something like it, if it catches on, will make any bookstore that has one a print-on-demand center. That will make it possible for good writers to become publishers without the overhead of warehousing and shipping, and with a lower per-book printing cost than current POD options. But only those who master marketing and publicity will earn enough to make a living.

I know this isn’t a cheery post but I read too many cheery proclamations from writers who keep doing what they’ve been doing while their incomes shrink. We all need to think ahead, not just to the end of the year but to five years from now. Where will publishing be? And where will you be in publishing?

– Anita Bartholomew

August 2, 2009

New York Times’ public editor’s inexcusable excuse about reporter errors

A friend read yesterday’s blog post on sloppy reporting at The New York Times and pointed me to Public Editor Clark Hoyt’s column in today’s Times. It’s about an error-ridden obituary that the paper published upon Walter Cronkite’s death. I found one section particularly telling:

THE TIMES published an especially embarrassing correction on July 22, fixing seven errors in a single article — an appraisal of Walter Cronkite, the CBS anchorman famed for his meticulous reporting. The newspaper had wrong dates for historic events; gave incorrect information about Cronkite’s work, his colleagues and his program’s ratings; misstated the name of a news agency, and misspelled the name of a satellite.

“Wow,” said Arthur Cooper, a reader from Manhattan. “How did this happen?”

The short answer is that a television critic with a history of errors wrote hastily [emphasis Anita’s] and failed to double-check her work, and editors who should have been vigilant were not.

I quickly checked whether The New York Times was still publishing the work of Alessandra Stanley, the entertainment writer/critic/obit writer who has a “history of errors,” according to Hoyt, and who hit the error jackpot on this one. Clicking on her name in the public editor’s column, I discovered she has had three pieces published in the Times since the errors in her Cronkite obituary came to the editors’ attention.

Clark Hoyt makes clear that Alessandra Stanley wasn’t  rushing to meet the deadline on this obit on the day Cronkite died; she’d written it on June 19, almost a month before it ran, and turned it in without fact-checking it.

Let me pause here and say I can’t imagine any competent writer turning in work he/she hadn’t ascertained was factual.

I just had to head off a potentially embarrassing situation with a magazine I won’t name. After turning in a thoroughly fact-checked (by me) article, the magazine emailed its “edited” version to me for a final review. I discovered that the magazine had introduced at least 19 factual errors including an entirely new section I’d never seen before (and certainly hadn’t written). The editor or someone else had apparently decided that the article should include information on an issue about which this new writer had no knowledge or understanding. This person had then written approximately 100 words-worth of wildly inaccurate conclusions.

Although I provided corrections to the sections where the magazine had introduced errors into my own copy, I didn’t have the time to double-check all the new material written by someone else. Simply knowing that, in the sections originating with me, someone had turned carefully checked fact into something less was enough to convince me to distance myself from the piece. I demanded that the magazine remove my byline.

I point to the above because I’m confident that most professional writers would do something similar: either ensure accuracy or, if that weren’t possible, make certain their names weren’t associated with inaccurate copy. To be less vigilant can amount to professional suicide.

But, if I’m reading Clark Hoyt’s column correctly, The New York Times doesn’t have the same concerns about reputation that I believe most of my freelance writer friends have. Despite being forced to run a column about correcting the copy of “a television critic with a history of errors,” and at a time when thousands of competent journalists are out of work, The New York Times gave this person several more chances to potentially embarrass the paper of record.

It does boggle the brain, doesn’t it?

– Anita Bartholomew

August 1, 2009

Where does The New York Times get all these lazy reporters?

I admit I have a love-hate relationship with The New York Times. I count on it being what a newspaper is supposed to be (and it often is). So when it lazily just quotes the interested parties in a story without digging for what the real story is, as it seems to do about once a week,  it feels like more than a disappointment. It borders on a betrayal.

Scott Horton, in his blog post about the difference between the Times and Washington Post reporting on the same story, points to WaPo having done real reporting. Reading the WaPo piece, you see that he’s right. The reporter quoted the interview subject, in this case, Karl Rove, then checked his claims against the evidence and refuted a number of Rove’s statements. The New York Times reporter, by contrast, swallowed Rove’s statements whole simply to regurgitate them onto newsprint.

To my mind, this pattern of laziness casts doubt on the value of all Times‘ reporting whether political or medical or sociological or legal or otherwise, at a time when news reporting is in deep crisis and needs to prove its worth:

… Karl Rove, violating his agreement with the House Judiciary Committee (which I discussed here), gave “exclusive” interviews to the Times and the Washington Post, in a determined effort to spin the bad news about his role in the firing of the U.S. attorneys and his unseen hand in the work of the Justice Department generally. The Post’s piece, by Carrie Johnson, shows an appropriate level of balance and skepticism about Rove’s self-serving and highly misleading claims. Not so the Times. Indeed, the headline tells the whole story: “Rove Says His Role in Prosecutor Firings Was Small.” The problem, of course, is that the evidence the Judiciary Committee has collected, and the investigation by special prosecutor Nora Dannehy, show precisely the opposite. They put Karl Rove squarely in the center of the effort to remove the U.S. attorneys fired in the December 7, 2006 massacre…

– Anita Bartholomew

July 30, 2009

The exploited writers’ anthem; sing to the tune of “Born Free”

From my friend and colleague, Erik Sherman, a little ditty to remind writers where writing for nothing will get them:

Here’s a snippet. Sing along to the rest on his site at this link:

Write free
As free as the grass grows
Who cares where the cash goes?
Write free, and follow your heart

Work free, and readers surround you
Exposure astounds you
Although you live in a car …

How dumb do these “Dummies” think we are?

I’ve written before about companies that ask writers to write for free or nearly free. Add another would-be exploiter to the list: the ” … for Dummies” folks.

On a writers’ email listserv, someone posted the following forwarded email:


Date: July 21, 2009 1:21:07 PM PDT

Are you a subject area expert who would like to write for Dummies.com?

Because consumers look to Dummies.com for answers on nearly every part of their life, we’re looking for expert authors on all kinds of topics from iPhones to investing. If you’re a topic expert with excellent writing skills and would like to contribute articles to Dummies.com, please visit us.

We’ll review your credentials and writing sample. If there’s a match, we’ll contact you. Unfortunately, we can’t send feedback to everyone, so only the authors that we think are the best match for Dummies.com will be contacted.

I found it curious that Dummies.com mentioned nothing about pay. I know, from a number of writer friends who have authored Dummies books, that the company doesn’t pay well but the work is easy and some books earn out their advances and pay royalties. So I thought these authors might be interested in picking up gigs for the website if the pay were halfway decent. Checking further, here’s what I found:

[You] grant us and our parent, affiliates and licensees the right to use, reproduce, display, perform, adapt, modify, distribute, have distributed, and promote the content in any form, anywhere and for any purpose without compensation

There’s more but the above is all you need to know. Do not write for companies that want your labor and talent but offer nothing in return. This is a profit-making venture for them but it won’t be for you. Give away your knowledge and talent, and you’ve established its value at $0.

Leave the slave labor to a real dummy and keep looking for a paying gig. And, if you’re so inclined,  politely let the Dummies.com folks know that you don’t think much of companies that exploit writers.

– Anita Bartholomew

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