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April 13, 2009

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

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

March 19, 2009

Google and Sony take on Amazon’s Kindle

Talk about a smart move for Sony. It’s made a deal with Google that will allow all Google’s public domain (expired copyright) books to be read on the Sony reader, the Kindle’s biggest rival.

Amazon requires that all Kindle books get purchased through Amazon and appear in its proprietary format. Sony doesn’t require you to buy all your electronic reading material for its reader from it and, as far as I know, never has. But that difference hasn’t been publicized. Or, if Sony has tried to publicize this, the media haven’t covered it.

Getting access to all the public domain classics that Google has scanned gives it a publicity boost. (I believe owners of Sony’s e-reader can already use the Sony devices to read many if not most of the same public domain classics via Project Gutenberg).

– Anita Bartholomew

UPDATE: My colleague, George Sheldon, pointed out that, on the Kindle 2, you can read Word documents, not just documents prepared in Kindle’s proprietary format, and the device has the ability to convert other formats to its own. Like Sony, it can access Project Gutenberg public domain books.

March 6, 2009

Barnes&Noble to challenge Amazon in ebooks

Barnes&Noble is buying Fictionwise, an ebook seller that will allow it to open an ebook store and go head-to-head against Amazon in the ebook business.

It’s a smart move. Amazon just announced that its Kindle application will be available on the iPhone. But Fictionwise, the new B&N acquisition, is already available on iPhones, on which it offers thousands of titles.

And, unlike Kindle titles, which require using Kindle as the application, either on the Kindle device or a supported iPhone or iPod, Fictionwise titles can be read on a variety of applications and devices. That means that there are fewer limits on its expansion. Amazon has tried, in every area where it’s become the leader, to crowd out the competition. When it comes to technology, however, if history is any guide, you want an application to be broadly adopted across platforms, not limited to a few.

March 4, 2009

Why writers shouldn’t bet their careers on magazine writing

An article by Francis Wilkinson in The Week asks whether writing is now a career that only the rich can afford to pursue:

The high end of publishing—books, magazines, The New York Times, The Washington Post, The Wall Street Journal—has always contained a contingent of wealthy worker bees who don’t actually live off their often meager salaries. But even a couple decades ago, a writer without independent means could still scrape together a living writing about something other than movie stars. Not a good one necessarily, but a living.

It’s not obvious how young writers without accommodating, well-to-do parents or a trust from gramps make it these days. Surely they can’t spend a year or two blogging without pay until an audience evolves to nurture them. They’ll starve.

He also says that “freelance rates for non-fluff magazine writing have barely risen in the past 15 years.” Apparently, Wilkinson doesn’t write for many magazines or he’d know that the problem isn’t just that rates haven’t risen; they’re recently begun falling.

Moreover, the trend of stagnating rates isn’t a recent phenomenon. According to Murray Teigh Bloom, one of the original members of the trade organization that is now known as the American Society of Journalist and Authors, told me about 15 years ago that he earned $1 per  when he began freelancing in the 1950s.

Today, many magazines are still stuck at $1 per word and several want to pay less than that. And it’s not simply because they want to exploit writers (although, they often do because too many writers agree to be exploited).

Every week, at least one magazine goes under. Hallmark magazine folded last week, not because it was doing poorly. It was one of the very few magazines where ad revenues were up.

If a magazine folds because (my assumption) it sees dimming prospects for the future, that solidifies my sense that focusing all one’s energy on writing for magazines is like focusing all one’s energy on selling VHS tapes. Not wise.

I recently wrote an article, for far less than I normally get paid, for an online magazine. It was on a controversial topic, close to my libertarian heart, and I wanted it published, even if it meant taking a pay cut. I felt good about getting the word out there. But the online magazine quickly folded (although its content is still up).

Even writing for major magazines that offer $2 per word and up, you have to contend with the possibility that the publication may not still exist when it’s time to pay you.

But books will always be with us, in some form, even if ebooks supplant paper. And that’s where I’d recommend any writer focus the greater share of his or her energy. It may mean that, in the not-too-distant future, you take on the multiple roles of author, publisher, publicist, distributor and warehouser, because major houses are trimming their acquisitions to those they believe (often wrongly, but that’s another post), will be surefire hits.

Only the intrepid, with an entrepreneurial bent can expect to do well under current conditions that are bad for the economy as a whole but worse for publishing. Any writer who sees him- or herself as too delicate to take on the business of marketing probably won’t survive in this climate absent a hefty trust fund or other means of support.

March 2, 2009

The easiest way to get a book deal these days?

It seems that if you want a publisher to make an offer, the quickest route is to make a fool of yourself in an atrociously public way. Examples include Joe the unlicensed, untruthful plumber who isn’t even named Joe; Ann Coulter, the insultaholic female (although some dispute this) Limbaugh wannabe; and now, to add to that list, we have the disgraced ex-governor of Illinois:

Former Illinois governor Rod Blagojevich announced a “six figure” book deal with Phoenix Books this afternoon. It will be published in October.

Words fail me.

February 23, 2009

The future of book publishing

From a speech given by Jason Epstein at the 2009 O’Reilly Tools Of Change for Publishing Conference, an interesting assessment of where we’re going. Walk into your local bookstore, choose any book you want from a catalog, and minutes later, one is newly printed for you and delivered into your hands. Forgive me if this sounds like hype but it really could revolutionize the industry:

The ATM for books that I envisioned ten years ago is today’s Espresso Book Machine whose latest iteration is here on display. Together with a high speed duplex printer this compact version 2.0 which, when its design is completed, will accommodate books of as many as 800 pages and can produce a 320 page, library quality paperback of any size between 4 x 4 and 8.5 x 11 identical to the factory made original in seven minutes for about a penny a page for consumables. The eventual cost of the machine will be no more than an office copier. The Espresso machine eliminates completely the Gutenberg supply chain by delivering a finished book from a selected digital file to the end user with no intervening steps: no inventory, no warehouse, no delivery cost, no spoilage and no returns. Ten test versions of Espresso 1.5, a predecessor version, are now operating in bookstores and libraries in the United States and Canada, Australia, Egypt and Great Britain.

February 20, 2009

James Patterson gets 28 new co-authors

According to readwriteweb.com:

Best-selling crime author James Patterson will release a new kind of novel next month – one that’s been collaboratively written with the crowd. Called AirBorne, the upcoming novel will feature 30 chapters, each written by a different author except the first and last – those will be written by Patterson himself.

The co-authors each won the right to pen one of the chapters in a contest co-sponsored by Borders Australia and Random House. The book will be released, one chapter at a time, on the web, of course.

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