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September 10, 2009

Google settlement an “end run around copyright law” says Register of Copyrights

Finally, Congress is reviewing the settlement. Where have they all been until now?

From a report in The Wall Street Journal:

The head of the U.S. Copyright Office told Congress on Thursday that she had serious concerns about Google Inc.’s (GOOG) legal settlement with authors and publishers who sought to block the company from scanning books and making them searchable online.

Marybeth Peters, the register of copyrights, said in written testimony before the House Judiciary Committee that the Copyright Office was particularly concerned that the settlement would allow Google to display and distribute out-of-print books without prior consent from the copyright owners of those books.

“To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it,” Peters said.

“In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress,” she said.

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

April 28, 2009

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.

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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