Ask The Editor

September 17, 2009

Publishing at the crossroads: who will own the future, you or Google?

I’ve written before that I believe the Espresso Book Machine (EBM) from On Demand Books,  could be a publishing industry game-changer, as much and even more so than the advent of ebooks. Although the EBM is only in 10 locations now, the wide distribution of EBMs or other machines like them, would allow authors, with new or out-of-print books, to publish their own work, at lower costs than are now generally available from POD printers. Because the books get published at the bookseller’s site, the author-publisher isn’t saddled with the significant costs of warehousing, shipping and distribution.

And returns? That would be a store-by-store policy issue but here, too, the savings to the author-publisher would be significant. If a store with an EBM permitted returns, the author-publisher might have to bear those costs. But the author-publisher would be spared the expense of refunds and two-way shipping on unsold  books that were published sans demand, and then removed from the shelf and returned when demand failed to catch up to supply.

The lower overhead opens up all sorts of possibilities and Google is now showing us that the game could go either way for those who want to breathe new life into their old books.

A story today in Wired says that Google is going to offer public domain (out-of-copyright) books via the Espresso Book Machine:

Over the last seven years, Google has scanned millions of dusty tomes from deep in the stacks of the nation’s leading university libraries and turned them into searchable documents available anywhere in the world through its search box.

And now Google Book Search, in partnership with On Demand Books, is letting readers turn those digital copies back into paper copies, individually printed by bookstores around the world.

Or at least by those booksellers that have ordered its $100,000 Espresso Book Machine, which cranks out a 300 page gray-scale book with a color cover in about 4 minutes, at a cost to the bookstore of about $3 for materials. The machine prints the pages, binds them together perfectly, and then cuts the book to size and then dumps a book out, literally hot off the press, with a satisfying clunk. (The company says a machine can print about 60,000 books a year.)

Two issues the story doesn’t address give us the clues to what makes this so technology so important to those of us who make our living by the written word:
The possibility for POD editions had been treated as a “maybe someday” clause in the Google settlement. Someday is here, it seems, the moment the settlement gets the judge’s thumbs-up (if it does). Assuming the same pricing structure as the out-of-copyright books, Google gets a dollar, and passes along 63 cents to the Book Rights Registry (BRR). The BRR passes along to publishers what’s left after taking its unknown cut. Publishers pass along to authors — what? Maybe 10 to 25 cents per book sold?

Contrast that to what an enterprising author might get by republishing her or his own out-of-print book and offering it via the EBM. Costs to print via the Espresso Book Machine are just $3 in materials plus whatever the bookseller adds for profit and the cost of amortizing the EBM owner’s investment in the machine. But on the author-publisher’s side, when you consider eliminating the costs of warehousing, shipping, distributors and returns, you’re likely to be about where you’d be with a traditionally published book with one enormous difference. You’ve removed the uncertainty factor that drives costs to unknown, profit-killing levels and keeps so many would-be author-publishers from going it alone.

When you’re no longer working on the crazy model of providing books on consignment and assuming all financial risks, you might actually be able to run a profitable business as an author-publisher.

Can you say the same is anywhere near possible if your books are coming out of the same Espresso Book Machine but the money goes to Google instead?

– Anita Bartholomew

Advertisements

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

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.

Google opt-out deadline still May 5th but court hears request for delay

From Publishers Weekly:

Last week, a group of authors and their representatives filed a request to delay the May 5 deadline. The motion filed April 24, by attorneys representing The Palladin Group for John Steinbeck and Thomas Myles Steinbeck, Catherine Ryan Hyde, The Philip K. Dick Testamentary Trust, Arlo Guthrie, Michael W. Perry, Eugene Linden, and James Rasenberger, asked the court for a four-month extension, with October 7 marking the new opt-out deadline, and with the hearing, now set for June 11, to follow at the court’s discretion.

Meanwhile, in response, attorney for the publishers’sub-class, Michael Boni, said the authors’ complaint was without merit and asked the court to reject it. However, Boni, said that “independent of” the authors motion, “plaintiffs and Google are amenable to a 60-day extension.”

The article goes on to quote New York Law School professor James Grimmelman saying that an extension is unlikely to be granted while the attorney presenting the request for the delay, Andrew DeVore, said that such a delay was necessary. DeVore pointed out that the Google settlement is “not a typical class action settlement,” because it’s not primarily about compensation for past injury but about future rights.

I’d point out that while the Google settlement is, indeed, not typical for class actions, it took its lead from an earlier class action that grabbed future rights from all affected writers for periodicals, essentially overriding copyright law by granting the Defendants future rights in all the works affected. In that class action, too, writers were “represented” by class action attorney Michael Boni, supported by the Authors Guild.

To haul out an old cliche, with friends like Boni and the AG, writers really, really don’t need any enemies.

– Anita Bartholomew

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

Blog at WordPress.com.