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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.

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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

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 13, 2009

Where to get a better deal than the Google Settlement? From Google.

Several writers I know have responded privately to my posts about the Authors Guild’s settlement with Google saying that they will stay in because they believe that the future of the book is electronic. And they want their books to be part of that future.

They’ve been misled into believing that those are their only choices: take the deal or have your work erased from cyberspace.

Wrong.

You can make a better deal. Google has one that’s ready-made for you, outside the settlement.

First, opt out of the settlement. Then, if you want to make your book accessible via Google, on the web, join the Google Books Partner Program.

Your books will appear where they would have appeared if you opted in to the settlement. But this way, you keep all your rights. And you can even add a “buy this book” button to the display page of your book if you offer the book for sale at your own site.

Remember: Google wants to scan your books. Just because the class action attorneys gave Google all sorts of extra rights (taken from you), doesn’t mean you have to roll over and play dead. Turn down the bad deal. Take the better one offered by the Google Books Partner Program.

“The Google Books Partner Program is a free marketing program that enables publishers and authors to promote their books online, through Google Book Search. By submitting a digital or physical copy of your book to be displayed online, you’ll make it discoverable to Google users from around the world.”

And yes, you can earn income from this –  Google shares the majority of its ad revenue with you –  and it’s probably more than you would get through the settlement. That’s because, in the Partner Program,  you deal directly with Google,  instead of with the Books Registry being set up to administer payments from future revenues via the settlement.

Use this form to sign up. You’ll need to mail a copy of your book for scanning but you can cancel your account at any time.

Here are some of the benefits of the Google Books Partner Program vs the Google Books Settlement:

  1. You send your book to Google and request that Google scan and display the book but, unlike opting in to the settlement, you can withdraw from your relationship with Google at any time.
  2. You get the majority of the revenue from ads appearing on the same page as your book. Contrast that with the settlement where, although you get 63% of the profit, that may be less than you believe. Some experts, including literary agent Lynn Chu, speculate that as much as half the revenues will be used for administrative costs of the registry before you see your share.
  3. You can include a “buy this book” link as long as it links back to your site, not that of a third party, for purchase. So,  if a preview hooks a reader’s interest, you get to sell the physical copies of your book.
  4. In the Google Books Partner Program, you don’t give up any of the rights, written into copyright law, that you now have.
  5. Unlike the settlement, you are not locked in for the life of the copyright.
  6. If something goes sour with Google, you aren’t forced into binding arbitration. You retain all your rights to sue in court.


– Anita Bartholomew

The Register of Copyrights weighs in on Google settlement

Marybeth Peters, Register of Copyrights (the person at the United States Library Of Congress in charge of the system that maintains records of who owns which copyright), has many things to say about the Google settlement. She was the first speaker at the conference Columbia Law School held in March on the settlement. The video of the conference is online.

As I was able to pause the video in order to transcribe parts of her speech, I learned (and will share) a great deal about her views that I haven’t seen reported elsewhere.

The first point she made, and the one she returned to many times, is that she’s troubled by the use of class action lawsuits to grab future rights because they are, in essence, legislation via litigation:

“I do believe that class actions generally look backward and settle infringements that have been in the past. And typically, when you go forward, it’s typically the prerogative of Congress, the legislative branch, to decide what the rules should be. And when they do that, they think of things like, ‘Are we meeting our treaty obligations?’ ‘What about the public interest?’ And everybody has an opportunity to be heard.

“And the question is, when you have a private agreement where there are private solutions that are in the nature of legislative action, resulting in something that would be a legislative action, is that a good thing?”

But does this settlement (and the earlier one, granting licenses by default to the defendants in the case now before the Supreme Court, Reed Elsevier v. Muchnick, No. 08-103) really change copyright law? Yes, by creating exceptions to the law that encompass almost all of the literary works that would be subject to it.

And the way such settlements change the law is particularly troubling. The infringers, i.e., the wrongdoers, the ones who should be paying steep penalties to deter them from future wrongdoing, always come out the winners.

Peters paraphrased the analysis of the Google settlement by Brewster Kahle, the creator of the online Wayback Machine:  it creates new copyright laws and a new payment system, all to benefit a single monopoly, for access to the collective books of mankind.

Her own concerns about the agreement appear to mirror Kahle’s.

“One thing I do know is that the legislative process is what the Constitution had in mind with regard to copyright policy. There is a balance between encouraging creativity and rewarding authors. And it gave that power to the Congress. And the Congress does act, sometimes slowly, sometimes well, sometimes, not so well. But that’s the Constitutional balance.”

Peters also complained that there are many unanswered questions and the possibility of unintended consequences. (Several other speakers at the Columbia Law School conference, all experts on copyright, said they were confused about what the settlement really said).

What was clear is that the vast future license for Google troubles the person in charge of copyrights for the U.S.

It should trouble us all.

The above is part 4 of a series of blog posts on the settlement reached between Google, the Authors Guild and the Association of American Publishers to settle a copyright infringement case related to Google’s unauthorized scanning of books.

– Anita Bartholomew

April 11, 2009

Google settlement, part 3: Authors Guild’s false information

My friend Pat McNees runs a website with good information for writers and editors. She recently posted links to various opinions about the Google settlement. I have one quibble with her section on this topic: she implies that you can trust the word of Paul Aiken, executive director of the Authors Guild.

“If you were alarmed by Lynn Chu’s piece in the Wall Street Journal (Google’s Book Settlement Is a Ripoff for Authors: ‘Why allow a single publisher to throw out a functioning copyright system?’ ) be sure to read this letter to the editor from Paul Aiken, executive director of the Authors Guild: The Google Book Deal Will Help, Not Hurt, Authors, which points out essential errors in Chu’s piece.”

Most authors, editors, and agents I know, like Pat, are willing to trust Aiken’s word. If they had studied the settlement with skeptics’ eyes, and consulted with attorneys, they more likely would trust Chu.

First, let’s deal with Aiken’s whopper:


“Ms. Chu likes the marketplace of in-print books that authors and publishers depend on. So do we: The settlement leaves it alone. Authors and publishers of in-print books will be able to participate in the settlement’s programs, but only with rightsholders’ express permission.”

I can’t imagine why Aiken would make such a patently false statement about a central issue. It’s too long to be a typo. What on earth was he thinking?

“Express permission” means “explicitly stated permission.” Any author reading Aiken’s words is likely to accept those words at face value and assume that, without his or her explicitly stated permission, he or she will not be subject to the provisions of the settlement.

Wrong.

Here’s how you get to “participate in the settlement’s programs.” Do nothing. Bam! You’re in. That’s not “express permission.” That’s license by default.

But it’s worse than that because, although the Google settlement gives authors some control over display and other incidentals, if you do nothing, and allow yourself to be lulled by Aiken’s reassurances, you’ve also agreed, by default, to mandatory arbitration (a huge issue that Chu brought up in her op ed but that Aiken never addressed).

Here’s the gist of what you need to know about arbitration: mega corporations love it because they almost always win in any dispute:

“The fine print associated with service agreements from credit card, wireless phone, Internet access, and other service contracts is increasingly likely to include a clause that removes contract disputes from the legal system, subjecting them instead to binding arbitration. Superficially, arbitration sounds like a great way to settle disagreements while avoiding the fees and animosity associated with legal action; arbitrators ostensibly offer an impartial decision quickly and painlessly. But a report issued by the consumer watchdog group Public Citizen portrays the process as heavily slanted towards business, and a Kafkaesque nightmare for individuals.” [emphasis mine – Anita Bartholomew]


April 8, 2009

Google Settlement: is it a bum deal? Part 2

A number of writers I know believe that the Google settlement is the best way to get their old books back into circulation. Their thinking is that, once the book is on the web as part of Google Books, the vast library of texts that Google will make available in various ways, new readers may find these old books. And the authors may realize new profits.

Let’s analyze the above and figure out whether it makes as much sense as some writers believe.

Q: Is having your book scanned by Google the only way to get it out on the web and available?

A: No. If you still have a word processing file of your manuscript you can publish your book yourself on smashwords with just a few keystrokes, in an electronic format, and offer it for sale. You’d get 85 percent of the profits from smashwords versus the 63 percent that Google is offering. And if you got a better deal elsewhere, you could take it. Contrast that with Google’s book scanning venture which requires you to enter into a binding 100+ page contract (the Google settlement) that nobody has yet thoroughly analyzed on your behalf.

Q: What’s wrong with opting into the settlement (signing the “contract”)?

A: I don’t believe that anyone has adequately parsed what’s in the settlement agreement or what its ramifications may be for the long-term. I don’t typically sign contracts without knowing whether the terms are favorable to me. Do you?

Q: But wouldn’t my book get more attention if it were part of the Google library of scanned books?

A: Not necessarily. Google, the search engine, finds material on the web for searchers based on keyword searches and ranks the material it finds based on various other criteria. As your original manuscript, if uploaded, would include all the same key words that your scanned Google Books version would, your own book wouldn’t necessarily be at a disadvantage.

Q: But I know nothing about publishing on the web. Why not just leave it to Google?

A: Again, see smashwords. You don’t need to know how to publish. All the instructions are there, plain and simple. Even so, you might decide that Google is your best option. But it’s important for this to be an informed choice. You need to weigh the costs against the benefits of agreeing to a 100+ page contract (the settlement), which is what you’d be doing in order to participate.

Q: Do I have to decide right now whether to participate?

A: Unfortunately, yes. You only have until May 5, 2009 to decide to opt out. If you don’t, you’re in. The decision is made for you. But you can opt out now – and you may be able to opt in later, according to page 33 of the settlement notice:

“If you opt out of the Settlement, you will not be eligible for a Cash Payment or to participate in any of the revenue models under the Settlement. You will, however, have the right to bring your own lawsuit. In addition, even if you opt out of the Settlement, you may still be able to contact the Registry or Google at a later date to attempt to negotiate a separate deal for inclusion of your Books in any of the Settlement Agreement programs.”

That “Cash Payment” you won’t be eligible 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 if Google has already scanned your book. If not, you get nothing. Zip. Is that a sufficient incentive for you to opt in?

Q: Can I opt in now and opt out later?

A: Nope. You may be able to change some of the terms of how your book will be displayed or other incidentals but you will have agreed, by default, to the terms of a 100+ page settlement.

Again, do you know what those terms are? Has anyone analyzed them on your behalf and given you all the pros and cons? And have the pros been so strongly in your favor that the cons seem inconsequential?

If you haven’t done that analysis, and you’re gung ho to go ahead anyway, I’d like some of what you’ve been smoking.

– Anita Bartholomew

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