| The Google Book Settlement and UK Law: 1 |
[22 November, 2009] |
I have continued to study the amendments to the Google Book Settlement agreement. I expect to post some more commentary shortly.
However, I can sum up now: The Google Book Settlement remains a very bad deal for authors.
None of the major objections to the settlement agreement have been addressed in the amendments.
All that the revisions amount to are tweaks to the administration of an instrument that remains elaborately calculated to strip authors of important legal rights and safeguards.
Recently I have been thinking about the GBS in relation to the laws of England. A conversation this week with a friend with a UK law degree has helped to clarify and confirm my intuitions for me.
First, an account of what is at stake and what is taking place:
A licence to use an in-copyright work may only be granted by the author, or her heirs or assigns, or a licensee who holds an appropriate licence under contract. This is true in UK, US and international copyright law.
It is just as true of non-exclusive licences (such as might be granted to an anthology editor, for example), as it is of exclusive ones; I mention this because there have been attempts to pretend that since the licences granted to Google under the GBS agreement are non-exclusive, the same rules somehow don’t apply. They do.
The GBS attempts to overturn this fundamental principle of copyright law by arranging for a small group of 'representative plaintiffs' from the USA, UK, Canada and Australia to consent to an agreement designed to
a) deliver Google Inc a perpetual licence to digitize, display online and sell in the USA any in-copyright works by any author that were published in those countries on or before 5 January 2009
b) retrospectively change the effect of all or most publishing contracts currently in force in those countries in respect of any of these works: the publishers are to be accorded de facto licences to certain rights – digital rights and\or American rights – even when, as is true in a great many cases, they did not acquire a licence to them under the terms of the original contract.
Two private UK citizens, the authors Margaret Drabble and Maureen Duffy, are undertaking to grant all this and more (see below) in a US court on behalf of every author (including every foreign author) who published a work in the UK before 6 January 2009, and every heir to an author's estate, or person to whom an author's rights have been, or will be, assigned. All this on a default opt-in basis, without seeking the authorization or informed, explicit consent of the persons whose rights will be affected: many of whom are in ignorance of the existence of the settlement agreement, or have only a very limited understanding of its terms.
The sole exceptions would be authors and their heirs or assigns who opt out by 28 January 2010, either online (not possible at the moment) or by writing to the settlement administrators (ask for confirmation by letter, and if you don't receive one, write to the court).
UK authors are being encouraged by Google, by the Authors' Licensing and Collecting Society (ALCS) and other cheerleaders for the settlement to believe that if they 'claim' their works on Google's database they will be able to fully control the commercial uses Google makes of them, and can even arrange to have them removed from Google's book corpus. However, this would only be true of works published in volume form: 'books'. Under the terms of the settlement agreement, authors of so-called 'inserts', poems, short stories, essays, etc, published in multi-authored collections, cannot have their works removed from the database and cannot prevent Google from selling them.
Warning to poets and short story writers who have been published in anthologies: Duffy and Drabble are prepared to sign away forever your rights to control the sale of those works, and the sums of money you will see in return will be trivial.
But there's more.
Duffy and Drabble are undertaking to
c) commit all authors who have been published in the UK, those who are to be opted-in without their consent (or even knowledge) as well as those who 'claim' their works, to relinquishing any legal claims, not only against Google Inc and the libraries that supplied it with the books to scan, but also any claims outstanding against other rights-holders: this would apparently include any claims against other authors, editors of anthologies etc, and publishers for copyright infringements committed in the past (including any that have not yet come to light)
d) waive on behalf of all these authors their rights to sue in the courts in the event of any future dispute with Google or their publishers over matters arising out of the settlement agreement; their only option would be arbitration, unless, in a dispute with a publisher, the publisher agrees that the case may be heard in court after all (and pigs might fly) [see Edward Hasbrouck's blog for more on this]
e) waive on behalf of all these authors their moral rights: under UK law, these rights include the right to be identified as the author of the work, and the right to object to any 'derogatory treatment' of the work; in the context of Google's book enterprise, this would cover the excerpting of works in 'page views', and the unauthorized display of advertising beside a work (which could be held to be 'prejudicial to the honour or reputation of the author' under the Copyright, Designs and Patents Act 1988)
f) waive on behalf of all these authors their rights to sue Google over any infringement of their trademarks: this would mean, for example, that Google could without fear of legal action use an author's pen name(s) and/or series titles as AdWords, and offer them to her for sale (it has already started doing this), or sell them to her rivals
Altogether, Duffy and Drabble are taking rather a lot on themselves, as my legally-trained friend remarked when I had explained all this. He wondered what sort of legal advice they had had.
I wonder that too.
It may yet turn out to be possible – the matter is still not certain – to use the machinery of a class settlement lawsuit in a US court to circumvent copyright law and subvert the law of contract.
However, when two UK citizens undertake to license the intellectual property of other UK citizens without their express consent to a foreign corporation in a foreign court, questions of UK law plainly arise.
My friend points out that by taking on this responsibility, Duffy and Drabble are implicitly accepting personal liability.
To put it in plain English: you can't give away what you don't own and are not authorized to give away; and if you do, you are laying yourself open to being sued by the owner(s). In the UK.
Ouch.
I wonder what is the aggregate value of the works that Duffy and Drabble are proposing to license to Google?
Even a single short story may be worth a few thousand pounds, depending on who wrote it. (And remember: the value of the US rights to all short stories that have appeared in anthologies will be virtually destroyed by this agreement.)
Then there are all the novels and other full-length works ...
If an author finds Google selling digital or PoD editions of her books that she has never authorized, what will she do? Opt in to the Google Book Settlement and 'claim' her works? Sue Google? Or bring a case in the UK against the persons who took it upon themselves to 'settle' a case for copyright infringement that she never brought by 'granting' Google indemnity for future violations and a licence to publish and sell her works?
I am not a lawyer, but somehow I can't imagine that the courts in Britain would look kindly on British authors' being 'opted-in by default' by way of a private lawsuit conducted by third parties in a foreign country into a perpetual contract of immense complexity, stuffed with clauses damaging to their interests.
***
I present informed reflection here: not legal advice, for which I am in any case not qualified. If these issues are of material importance to you, I recommend you investigate the amended settlement agreement. If you can possibly afford it, consult a suitably qualified lawyer.
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| Amended Google Book Settlement agreement: More about the changes |
[16 November, 2009] |
Previous posts on the Amended Google Book Settlement Agreement:
The Countries involved, and the New Plaintiffs
The Timetable
* Changes to the kinds of works included
There are changes to the definitions of 'book' and 'insert' (that is, roughly, a short work, such as a story, poem, essay or foreword included in a larger work written or edited by a different author):
Music notation and children’s book illustrations are excluded from the definition of “Insert,” and works for which 20% of pages contain more than 20% music notation are excluded from the definition of “Book.” Books reproduced in microform are now excluded from the definition of “Book,” as are calendars. Finally, comic books and compilations of Periodicals now are explicitly treated as Periodicals, and are thus excluded from the definition of “Book.”
(Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Amended Settlement Agreement, pp. 4-5)
However:
The Amended Settlement does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement.
(Attachment N to the Amended Settlement Agreement: Supplemental Notice To Authors, Publishers And Other Book Rightsholders, section 18)
These changes let Google and the plaintiffs off the hook, or largely so, with some of the big objectors and critics: Proquest, the specialist academic publisher, a pioneer in microfilm publishing; D. C. Comics, publishers of Batman, Wonder Woman, etc; and the Song Writers Guild of America. According to the Memo in Support (p. 5 n.3) the SGA was permitted to engage in direct negotiations with the lawyers drafting the revised agreement, and have now agreed to withdraw their objection.
I imagine that the removal of all music notation from the scope of the settlement would have been necessary in any case, following the firm behaviour of EMI Music Publishing and Sony/ATV Music Publishing, both of whom opted out in letters to the court that made it perfectly clear they intended to defend their rights: also that these giants had no intention of providing Google with a helpful list of their millions of copyrighted works. Presumably Google's software engineers are currently scrambling to put together a program that can pick out musical notation on a scanned page.
The inclusion of children's book illustrations always was a bit of an anomaly, when all other illustrations were excluded. Representatives of photographers, illustrators and other visual artists twice tried to persuade the judge to include them as a settlement class, with separate representatives, and were twice refused (short summary here). There was no children's book illustrator among the original set of 'representative plaintiffs'.
So as I read the passages above, the children's book illustrators who are not the authors of the books they illustrate, and who have not assigned copyright in their pictures to the author/publisher, are now outside the scope of the Google Book Settlement: their images will not be displayed, or sold, under its provisions, and they are not bound by the agreement. (But if you are a children's book illustrator, do read these passages through yourself, and take proper professional advice if you are not clear about anything.)
Graphic novels and children's pictures books where the author and the illustrator are the same person are still included in the settlement, as Attachment N makes clear.
Why are illustrations not included in the GBS? It has been suggested that Google didn't want to mix it with Getty Images, and Corbis (owned by Microsoft), the giants of the stock image world.
The visual artists' organisations have been quite critical of the settlement. In their objection to the court, they stated, for instance, that they do not believe that the terms of the Proposed Settlement would provide fair compensation to all Visual Arts Rights Holders for past and future infringements arising from the G[oogle] L[ibrary P[roject] if they were included on the same basis as creators of other "Inserts"'.
The following passage is from the press release put out by the American Society of Media Photographers after the second occasion in which Judge Chin (presiding over the Google Books case) refused to admit the visual artists as plaintiffs: 'If allowing photographers and other visual artists to intervene would, as the Court stated, "put the entire settlement at risk," it is because, in ASMP's view, the settlement is fundamentally flawed and should not be approved by the Court.'
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| Google Book Settlement Mark Two, continued |
[16 November, 2009] |
Edward Hasbrouck, co-chair of the Book Division of the National Writers Union, on the revised Google Book Settlement agreement: 'It's still fundamentally an opt-out, license by default system, not opt in.'
With this in mind, then, let's aim to establish the new timetable as this is set out in the memorandum to the revised settlement agreement. (Thanks to James Grimmelmann for extracting and assembling much of the relevant information [he also covers a couple more procedural points].)
- Monday, December 14, 2009: the Plaintiffs and Google will begin sending out notices of the revised agreement to the settlement class
- Thursday, January 28, 2010: deadline for opting out; also the deadline for sending objections to the court (for authors/publishers who opt in/stay opted in) or amicus briefs for those who are not parties to the settlement but wish to comment
- Thursday, February 18, 2010: final fairness hearing by the court
- March 31, 2011: new deadline for submitting cash payment claims for books and 'inserts' that Google scanned on or before May 5, 2009 without obtaining the permission of the rights-holder(s)
- April 5, 2011: deadline for applying to have a book removed from the digital copies held by the 'partner' libraries
- March 9, 2012: deadline for applying to have a book removed from Google's own databases
Notes on the above:
If you opted out of the settlement by 4 September 2009 (the original deadline) you will not have to opt out again (see Attachment H to the Amended Settlement Agreement, section 24).
However, if you opted out and are now, for some reason, having second thoughts about it, you may choose to opt yourself in (see the same section).
Notices of the revised settlement will be 'emailed or sent by postal mail to all persons who provided contact information on the official settlement website or on a Claim Form, who opted out of the original Settlement Agreement, or who filed an objection, amicus position or other statement with the Court' (Amended Settlement Agreement, section 12.2).
So if you opted out you ought to get a settlement notice shortly after the 14 December. (If you trusted yourself to the online opt-out procedure and you fail to get a notice, you may wish to write to the court stating that you have opted out, so as to be on the safe side. As I understand it, your letter should be filed with the court's papers and copied to the settlement administrator.) Likewise if you have claimed your books, you ought to receive a settlement notice.
On the cash payment claims: these are specifically for books that have been digitized by Google through its Library Program, not books that have been digitized with the permission of the publisher through its Partner Program. (To judge from emails I have received, some authors are very confused about this. Some books are being digitized through the Partner Program without the authors' realizing that this has been authorized by the publisher.)
If you neither opt out of the settlement nor claim your books by registering them on Google's database (see the settlement website) the US court will deem you anyway to be opted in – assuming the agreement is ratified, that is. That will mean that your work will be treated as unclaimed: Google may use it at will, within the terms of the settlement agreement, and you will have no control and receive no money.
That is apparently true in the US, at any rate. However, it has been suggested to me that UK authors may have some remedies in UK law. But of that, more later.
Note: the information above is given in good faith with absolutely no guarantees. If these dates and this info is crucial for you, check up. The main source is the memorandum to the revised settlement agreement.
Post Scriptum: Just in case it isn't clear from the above: under the amended GBS agreement, authors and publishers who have opted in and 'claimed' their books on Google's database now have a chance to change their minds and opt out again.
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| Google Book Settlement Mark Two |
[14 November, 2009] |
The revised Google Book Settlement agreement was filed with the court yesterday evening.
The admirably tenacious James Grimmelmann of the New York Law School has worked through the night, tweeting as he went, making an initial analysis of the changes.
He has posted the revised settlement here, and, even more useful to those of us who have studied version one, he has also posted a version in which the changes are marked in blue.
I shall make a start here on covering the main points, primarily from a UK viewpoint:
The settlement now excludes all foreign works except those published in the UK, Canada and Australia.
Google and the plaintiffs shot themselves in the foot over the non-Anglophone countries when they sent out inadequately-translated notices. But excluding those countries also removes many of the best-organised objectors: among them the French, the Germans, and the Japanese. It also heads off trouble from China and India.
However, not all Anglophone countries are included. New Zealand is out; and so is India, which has a big English-language publishing sector. And Ireland is not included either, which is interesting.
In New Zealand the NZ Society of Authors opposed the settlement strongly, and lobbied their government, which agreed to meet with them to discuss how to address their concerns.
As I noted earlier this week, the Indian government has put diplomatic pressure on the US government over the GBS: presumably as a result of representations from Indian authors and/or publishers.
Two UK authors have been added as 'representative plaintiffs': the novelist, poet, dramatist and non-fiction writer Maureen Duffy and the novelist, memoirist and non-fiction writer Margaret Drabble.
Duffy is someone I have always respected and admired, as a writer, as an 'out' lesbian novelist in the sixties (a time when there really were no others) and as a very effective campaigner for the rights of UK authors (for example, in the matter of the Public Lending Right). It grieves me unspeakably to see her in this role.
Margaret Drabble is the current Chairman of the UK Society of Authors.
Maureen Duffy is the Honorary President of the Authors’ Licensing and Collecting Society.
I am not a member of either of these societies. But if either of them has widely consulted with its membership over the Google Book Settlement, news of this has not reached me.
And I wrote my paper The Google Book Settlement and European Authors largely because the accounts they were giving their members and other inquirers of the contents and implications of the original GBS agreement seemed to me to pass over some very cogent criticisms of it that I was encountering in the work of well-informed US legal commentators such as Lynn Chu, C. E. Petit, James Grimmelmann and Pamela Samuelson.
A question that must be asked is this: is it compatible with UK and European law that two individual citizens can purport to assign a perpetual licence to the intellectual property of a huge number of other UK citizens to a foreign company in a foreign court, without the property owners' express consent or even in many cases their knowledge?
There are two more new plaintiffs: Daniel Jay Baum and Robert Pullan. Baum is a Canadian writer on legal topics with strong academic connections.
Pullan is the Chair of the Australian Society of Authors. I cannot find that any of his handful of books is currently in print. His most recent book publication appears to have come out in 1994.
Two UK publishers have now been added as plaintiffs: Harlequin, the romance publisher, and Macmillan.
The UK Publishers Association has stated that its members are divided over the settlement. Some have opted out: which, we do not know. The only UK publisher to stay in and object was Hachette UK, which owns Headline, Hodder, John Murray, Little, Brown, Octopus and one or two other imprints.
From Australia, Melbourne University Publishing and The Text Publishing Company have been added. I don't see a Canadian publisher here.
Lunch calls. I hope to post more later today, but it may have to wait until tomorrow.
But hey: if you are a UK author reading this and you don't like what you see: this is crunch time.
Inform yourself. Tell your friends and acquaintances. Organise. Lobby.
Contact your elected representatives, the UK Culture Secretary, and the Culture, Media and Sport Committee.
The ALCS and (apparently) the Society of Authors have been assimilated by the Borg.
But: one thing the GBS agreement mark 2 does show is that where authors have successfully lobbied their governments to put pressure on the US, works published in those countries have been excluded from the scope of the settlement.
It is time for some tough resistance from the grass-roots.
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| 'All the Fun of the Fair' |
[13 November, 2009] |
Title of eighteenth-century children's book, published by John Newbery:
'The Fairing: Or, Golden Toy for Children,
In which they may see all the Fun of the Fair,
And at Home be as happy as if they were there.
A Book of great Consequence to all whom it may concern. Price Six-pence bound, gilt, and adorned with Cuts.'
It first appeared in 1767, and went through a number of editions.
I don't know whether it was the source of the catchphrase 'All the fun of the fair', or whether it borrowed a phrase that was already current, but it is the earliest occurrence I can find.
I have posted some more pictures of the gallopers on Flickr; quite a lot more. For anyone who has enough enthusiasm and stamina, there is now a set of 50.
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| 'Here be fine Sights' |
[12 November, 2009] |
It is fair time in Loughborough, and the streets are full of people determined that the pouring rain won't stop them having fun.
As usual I gravitate to the wild fantasy world of the gallopers.
( More photos )
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| Google Book Settlement: Catch-up Time |
[10 November, 2009] |
Yes, I know, I went very quiet. Sorry about that. I was mentally very tired. All those twisty little clauses: it was a boring, draining summer. And I was becoming dyspeptic. You can only be angry for so long before your digestion starts playing up.
Moreover, I was spending quite a lot of time commenting on the GBS and copyright issues on other websites, often at some length. It seemed like a good idea at the time, and probably was.
The last thing I commented on here was the statement from the US Copyright Office on 10th September.
The big news I should have reported next was the statement from the US Department of Justice, filed on 18th September. One reason I didn't was because I found it hard to figure out what to make of it, and my tired brain got trapped in a kind of endless pinball game, continually carooming off one sentence or another.
On the one hand, the DoJ statement asserts unequivocally, citing many good reasons, that the original GBS agreement was legally impossible, and would need drastic modification to comply with the law. That made good hearing, so far as I was concerned. On the other hand, it states that there are elements in the GBS agreement that would be a good thing if implemented: but it doesn't say how this might be done without falling foul of the many legal obstacles. Frankly, I hear two voices in this document: one belongs to a lawyer, and one to a politician.
As a result of the DoJ statement the plaintiffs withdrew the GBS agreement mark one, with the agreement of Google and the consent of the court. Instead of the planned fairness hearing on 7th October there was a short status hearing to plan the next steps.
Judge Chin set a deadline of 9th November for a revised settlement agreement to be filed.
Subsequently Google, the Association of American Publishers, and the Authors Guild combined to spin a line to the press and the public that all the agreement needed was a few minor changes. The Open Book Alliance handily summarized their key remarks in a post called 'It Doesn't Add Up'.
Yesterday the parties applied for an extension until Friday 13th. The letter mentions that they met with the DoJ last Friday. John Paczkowski of All Things Digital put two and two together: 'It would seem, then, that the latest version of the settlement did not adequately address the DOJ’s concerns'.
So: we wait and see.
Meanwhile:
China was invited to Frankfurt Book Fair (in mid-October) as the Guest of Honour. As a result, apparently, Chinese writers woke up to the existence of the GBS: and they didn't like the sound of it.
The Indian government is also not happy about the GBS and in a diplomatic meeting 'senior Indian officials told their US counterparts that the portal would encroach upon the copyrights of Indian authors and publishers'.
The international pressure is growing.
Sergey Brin wrote a piece about the settlement for the New York Times. Interestingly, he found it necessary to make some very silly statements, such as the following: 'Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.'
To judge from the comments, he even annoyed some of his supporters. People don't like it if they get the impression that you think they are too stupid to realise you are talking bullshit.
Subsequently the NYT published a letter from Lauren Baratz-Logsted, a novelist: 'Fly??? I’m pretty sure I can e-mail a reference librarian and ask her to check holdings before I do anything so drastic as fly. Hasn’t this guy ever heard of the Internet?' Quite. (Well, in the UK I'd run a check on COPAC, actually.)
One of the things I have found very interesting while watching the whole controversy develop has been a quite marked decline, since the spring, in respect and sympathy for Google. I think the GBS has been a PR disaster for them. Even some of the people who are impressed by the Grand Design of the book operation have grown troubled by the legal implications of the way they have tried to push it through.
The day before Brin's piece appeared in the NYT, Brin and Eric Schmidt gave an interview in New York. Challenged over Google's growing power, Schmidt reportedly said:
If we went into a room and were exposed to evil light and came out and announced evil strategies, we would be destroyed. The trust would be destroyed. ... We have not yet found the evil room on our campus.
Behind the schoolboy language, I detect a worried man.
More insight into what goes on in the mind of Sergey Brin emerged last week from an interview with the journalist Ken Auletta, who has just published a book on Google:
[Q]: Google co-founder Sergey Brin told you that “people don’t buy books anymore” and that you should put your new book online for free. Your response?
Auletta: When Brin told me this I asked him a series of questions. Who, I asked him, would pay me a salary to work on the book? Who would pay for my 13 trips to Google, including airfare, hotel and car? Who would edit the book? Who would do the book tour and marketing? Who would prepare the index? Who would do the legal vetting? By the end of my questions, Brin wanted to change the subject. The reason, I think, is that he has an innocent faith in the Internet and inadequate knowledge about how books are published.
And this is the guy who wants to restructure the publishing industry, ostensibly in the public good.
I find this exchange highly enlightening in what it reveals of Brin’s view of the book-selling trade: apparently he has so little concept of books as salable objects as to suggest that even a brand new, highly topical book should be put online ‘for free’.
It implies that the guys at the top of Google are not really expecting or, presumably, planning to make a profitable thing out of selling books.
This does not really surprise me. In my paper The Google Book Settlement and European Authors I suggested that most of the money Google expects to make out of Google Books would come from advertisements served on Book Search results (Google’s Plans for Making Money, section 9). Under the GBS agreement mark one none of that income would be payable to the rights owners.
People (and there are some) who have seen in the GBS exciting possibilities for publishers and authors would do well to meditate on the implications of Brin's advice to Auletta.
And people who have been impressed by the hype that Google is some kind of public benefactor, its project nothing more or less than a giant online library, should read Pamela Samuelson's piece in the Huffington Post: Google Books Is Not a Library.
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| Twelve-foot musical ants |
[15 September, 2009] |
Went to Market Harborough on Sunday and wandered unexpectedly into a street festival. Highlight of the occasion was the Ant Orkezdra. Amazing!
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| Google Book Settlement: Statement by US Copyright Office |
[10 September, 2009] |
Marybeth Peters of the US Copyright Office to the House Judiciary Committee today, on the Google Book Settlement:
'We are troubled by the fact that the proposed settlement implicates so many foreign works even when they have not taken steps to enter the United States market. While it would be appropriate to allow foreign nationals to participate voluntarily in licensing programs that may be developed by the BRR or other collectives, they should not be automatically included in the terms of the settlement. Moreover, we are aware that some foreign governments have noted the possible impact of the proposed settlement on the exclusive rights of their citizens. Indeed, many foreign works have been digitized by Google and swept into the settlement because one copy was in an academic research library in the United States. As a matter of policy, foreign rights holders should not be swept into a class action settlement unknowingly, and they should retain exclusive control of their U.S. markets.'
The whole statement is good: http://judiciary.house.gov/hearings/pdf/Peters090910.pdf
Thanks to James Grimmelmann and his invaluable Laboratorium site for the link.
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| More Reasons to Beware of the Google Book Settlement |
[4 September, 2009] |
We are into count-down time now.
Objectors to the Google Book Settlement, now filing their statements at quite a lick, are exposing yet more traps lurking in its convoluted text.
The Objections of Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, and Eugene Linden, filed by their counsel, Andrew C. Devore, raises a number of disturbing points. One of these concerns the damage to authors' trademarks, where these exist:
Although this has always been exclusively a copyright case, the Agreement purports to release “each and every Claim of every Rightsholder that has been or could have been asserted in the Action against any Google Releasee (including all Claims of copyright infringement, trademark infringement, or moral rights violation)” that arise out of all future uses of authors’ works. (SA §§ 10.1 (b), (d), (f), (h), (j), 10.2(a).) As a result, the Agreement strips authors of any ability to protect against damaging future uses of their intellectual property through claims such as trademark, right of publicity, non-disparagement, and tortious interference. This broad release raises substantial concerns for all authors, and particularly for those who have a large and popular body of in-print works and may have trademark rights in their names and titles.
…
Because it is so broad and untethered from the underlying dispute, the release effectively bars authors from preventing objectionable uses of their works and names in connection with GBS. … For example, Google may allow advertisements to appear alongside works that are harmful to an author’s reputation or contrary to their core philosophical or political principles; bury an author’s own web site far down in search results in response to a search for that author’s works; allow third-party websites to run Snippets against objectionable content on those sites, (SA §3.9); or make other objectionable uses of authors’ works.
The Estate of Philip K. Dick has opted out of the Settlement, partly on these grounds. A statement by Dick's daughter is appended to the Objection of Arlo Guthrie et al. She also notes that she is finding Google's database impossible to use:
A recent search for works by my father on the Database resulted in over 3,000 entries … This problem is compounded by the fact that the Database is indecipherable. For example, I cannot assess whether a particular work is an Insert or Partial Insert. … Moreover, the Database is riddled with technical problems. Not only is it very hard to claim and unclaim works, but on several occasions I was essentially "stuck" in the Database and was unable to move to the next page and complete the claiming process.
The science fiction and fantasy author Elizabeth Moon has made several LiveJournal posts about the considerable difficulties she has had using the database to claim her works. She has also posted a good piece on copyright, from a US perspective. (UK rules are somewhat different. If anyone in the UK suggests you should register your work with a 'copyright office' to secure your rights, they are trying to scam you.)
One of the points that Laura Leslie, Philip K. Dick's daughter, is concerned about is the way the settlement agreement treats 'inserts': short stories, poems, essays, articles, and song lyrics. Dick, of course, was a noted short story writer, and his stories are valuable properties. Some of them were made into films: Minority Report, Total Recall.
While authors who opt in can claim their books and (in theory) remove them from the database, the settlement agreement does not permit the removal of 'inserts' published in multi-authored collections (Section 3.5(a)(i) refers only to books). Worse, though it is possible for an author to have 'inserts' removed from 'display uses', it is not possible to have them removed from what the agreement calls 'revenue models', defined as 'institutional subscriptions, consumer purchases, advertising uses, public access service and any other revenue models agreed between the Registry and Google'. (See Section 3.5(b)(i).) So if a story or poem has ever been published in an anthology, the settlement gives Google the right to sell or give away access to it, run ads alongside it, or exploit it in any other ways the Registry may be persuaded to agree to: and the author has no rights to stop this. Only the editor or publisher of the work is able to do that.
The settlement agreement is an almost endless maze of legal traps. I had missed that one myself, nor had I seen anyone else point it out, until I read the Objections of Arlo Guthrie et al, and the appended statements.
Travel writer Edward Hasbrouck, who has made a close study of the settlement agreement, is also opting out. Like the objectors advised by De Vore, he is very concerned about the broad releases contained in the settlement agreement, and he has sent a letter to the court, which he has placed online. He has attached his excellent paper Google Books and Writers' Rights as an appendix to it. He notes that the settlement agreement requires authors to release any legal claims not only against Google and the libraries who have been participating in its library project, but also 'against print publishers, class counsel, and the Authors Guild'. He is particularly concerned about the apparently very broad release of authors' claims against print publishers. He further notes that the settlement notice withholds this information, referring only to claims against Google and the libraries.
The New Zealand Society of Authors has also put in an objection, which they have published on their website. I am glad to see that they put the boot very thoroughly into the idea that the Berne Convention may be invoked to try and drag foreign authors into the settlement class, while its protections for authors rights are systematically denied.
The Berne Convention for the Protection of Literary and Artistic Works provides for reciprocity of protection. It does not provide for reciprocity of burden. Whether one agrees or disagrees with the settlement, clearly it does far more than afford protections to authors. It sets up what has been referred to as an international licensing regime requiring affirmative action and expense by authors to understand it first of all and then to take steps even if they wish to opt out. Those are not reciprocal protections as envisaged by Berne and therefore it is not appropriate to use that treaty as a means to extend the settlement to non US authors. Non US authors should be removed from the author sub-class.
Yay! Go Kiwis!
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| A Pirate Story |
[4 September, 2009] |
This ballad appears to refer to one of the exploits of the notorious Paul Jones, the American pirate. It is founded on fact.*
… At the close of a winter day,
Their anchors down, by London town, the Three Great Captains lay;
And one was Admiral of the North from Solway Firth to Skye,
And one was Lord of the Wessex coast and all the lands thereby,
And one was Master of the Thames from Limehouse to Blackwall,
And he was Captain of the Fleet – the bravest of them all.
Their good guns guarded their great gray sides that were thirty foot in the sheer,
When there came a certain trading brig with news of a privateer.
Her rigging was rough with the clotted drift that drives in a Northern breeze,
Her sides were clogged with the lazy weed that spawns in the Eastern seas.
Light she rode in the rude tide-rip, to left and right she rolled,
And the skipper sat on the scuttle-butt and stared at an empty hold.
'I ha' paid Port dues for your Law,' quoth he, 'and where is the Law ye boast
If I sail unscathed from a heathen port to be robbed on a Christian coast?
Ye have smoked the hives of the Laccadives as we burn the lice in a bunk,
We tack not now to a Gallang prow or a plunging Pei-ho junk;
I had no fear but the seas were clear as far as a sail might fare
Till I met with a lime-washed Yankee brig that rode off Finisterre.
There were canvas blinds to his bow-gun ports to screen the weight he bore,
And the signals ran for a merchantman from Sandy Hook to the Nore.
He would not fly the Rovers' flag – the bloody or the black,
But now he floated the Gridiron and now he flaunted the Jack.
He spoke of the Law as he crimped my crew – he swore it was only a loan;
But when I would ask for my own again, he swore it was none of my own.
He has taken my little parrakeets that nest beneath the Line,
He has stripped my rails of the shaddock-frails and the green unripened pine;
He has taken my bale of dammer and spice I won beyond the seas,
He has taken my grinning heathen gods – and what should he want o' these?
My foremast would not mend his boom, my deckhouse patch his boats;
He has whittled the two, this Yank Yahoo, to peddle for shoe-peg oats.
I could not fight for the failing light and a rough beam-sea beside,
But I hulled him once for a clumsy crimp and twice because he lied.
Had I had guns (as I had goods) to work my Christian harm,
I had run him up from his quarter-deck to trade with his own yard-arm;
I had nailed his ears to my capstan-head, and ripped them off with a saw,
And soused them in the bilgewater, and served them to him raw;
I had flung him blind in a rudderless boat to rot in the rocking dark,
I had towed him aft of his own craft, a bait for his brother shark;
I had lapped him round with cocoa husk, and drenched him with the oil,
And lashed him fast to his own mast to blaze above my spoil;
I had stripped his hide for my hammock-side, and tasselled his beard i' the mesh,
And spitted his crew on the live bamboo that grows through the gangrened flesh;
I had hove him down by the mangroves brown, where the mud-reef sucks and draws,
Moored by the heel to his own keel to wait for the land-crab's claws!
He is lazar within and lime without, ye can nose him far enow,
For he carries the taint of a musky ship – the reek of the slaver's dhow!'
*This is a joke. Kipling was experiencing problems with certain US publishers who were publishing editions of his books without permission and refusing to pay him.
from 'The Rhyme of the Three Captains' (1890)
Rudyard Kipling (1865–1936)
<link>
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| Google and the New World |
[3 September, 2009] |
The deadline for filing an objection to the Google Book Settlement, or an amicus brief, "has been extended until 10:00 AM on Tuesday the 8th. Note, however, that the court’s electronic filing system will be unavailable starting at 2:00 PM tomorrow (Thursday, the 3rd) until 8:00 AM on Tuesday the 8th" – James Grimmelmann, The Laboratorium, citing this document. Note well: the opt-out deadline has not changed (despite some false reports to the contrary).
***
Back in July, one of the Settlement's defenders, a US lawyer called David Balto, had this to say:
Google has created a universally accessible, searchable, digital library of unprecedented dimensions. Although this is not a discovery of a "new world" akin to Christopher Columbus' achievement, it has the potential of substantially increasing access to a phenomenal amount of information for millions of consumers. The critics of this endeavor need to learn the lesson of Columbus' critics: the world is not flat. – The Earth is Not Flat: The Public Interest and the Google Book Search Settlement: A Reply to Grimmelmann
The parallel struck me as rather more pointed than I believe Mr Balto intended.
First Voyage of Columbus; letter from Columbus (April–May 1493):
Sir, As I know that you will be pleased at the great victory with which Our Lord has crowned my voyage, I write this to you, from which you will learn how in thirty-three days, I passed from the Canary Islands to the Indies with the fleet which the most illustrious king and queen, our sovereigns, gave to me. And there I found very many islands filled with people innumerable, and of them all I have taken possession for their highnesses, by proclamation made and with the royal standard unfurled, and no opposition was offered to me.
***
In conclusion, to speak only of that which has been accomplished in this voyage, which has been so hasty, their highnesses can see that I will give them as much gold as they may need, if their highnesses will render me very slight assistance … and slaves, as many as they shall order to be shipped, and who will be from the idolators.
Second Voyage of Columbus; memorandum of message sent to Ferdinand and Isabella (1494):
You shall say to their highnesses that the welfare of the souls of the said cannibals, and also of those here, has induced the idea that the more may be sent over, the better it will be, and in this their highnesses may be served in the following way. That, having seen how necessary cattle and beasts of burden are here, for the support of the people who have to be here and indeed for all these islands, their highnesses might give a licence and a permit for a sufficient number of caravels to come here every year and to carry the said cattle and other supplies and things for the colonization of the country and the development of the land, and this at reasonable prices at the cost of those who transport them. Payment for these things could be made to them in slaves, from among these cannibals, a people very savage and suitable for the purpose, and well made and of very good intelligence. We believe that they, having abandoned that inhumanity, will be better than any other slaves, and their inhumanity they will immediately lose when they are out of their own land. And of these they will be able to take many with the oared fustas [boats] which it is proposed to build here. … And further, on these slaves which they carry, their highnesses could levy a duty there.
Translated by Cecil Jane (1879–1932) for the Hakluyt Society
All in the public interest, right?
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| Google Book Settlement: More Light Relief |
[2 September, 2009] |
A consortium of publishers from Austria, Germany, Sweden and Switzerland has put in an Objection to the Google Book Settlement, backed by a number of individual affidavits (for which see The Public Index site).
One point they made I had missed completely, being an English speaker. The parties to the settlement promised the court that they would have the 350-page settlement agreement translated into 35 different languages, and the court so ordered. But they haven't bothered to do this. It hasn't been translated into even one other language, apparently.
More than this: they did translate the Notice of the Class Action into a number of languages: but they apparently used a computer program to generate automatic translations! Which of course were the usual sort of gobbledy-gook. And when you consider that this is a legal document – well.
A German lawyer points out, in an affidavit, a number of critical errors found in the 'translation' into German: 'For instance, the term "sub-class" was translated into a German sociological term - Unterklasse - meaning "lower class" or "working class." ... The term "settlement benefits" was translated into - Sachzuwendungen - an unusual German term used in tax law that refers to a particular form of non-monetary benefits ... Additionally, in the Notice, the concept of "owning rights" was translated into the German legal term Eigentum. This terminology is inapplicable to the Settlement Agreement because it is a technical term referring to ownership of a physical object or piece of land, not the intangible copyrights at issue here.' And so on and so forth.
I found all this hilariously funny.
What conclusions does one draw from this (apart from the fact that the class action requirements for notice have manifestly not been observed)?
A childlike trust in computer algorithms is very Google. And this screw-up - which is a pretty big one - points directly to one of the practical problems with the Google Settlement: that these guys rely far too much on the power of computer programs to transform and manipulate data - and those are just not that accurate. And running a massive publishing enterprise/bookseller/rights registry/library would require pretty accurate data.
Take, for example, the issue of whether a book is 'commercially available', which the settlement proposes to treat as a crucial determinant of the default uses that may be made of a given book in Google's database. And it is Google who gets to decide this: not the Book Rights Registry. Somehow, I don't suppose that Google intends to research that data and hand-enter it on a book by book basis. I bet they have an algorithm for it. And I am sure it is not sufficiently robust for the job.
This is another of the points made by the publishers from Sweden and the German-speaking countries: that Google's database is hugely inaccurate on the question of commercial availability. A South African publisher has made the same point.
While on the subject of Google and stupid mistakes, there is a good post here by Geoffrey Nunberg of the School of Information at Berkeley on the innumerable errors in the metadata on Google Books. Again, some of it is pretty funny: 'Various editions of Jane Eyre are classified as "History," "Governesses," "Love Stories," "Architecture," and "Antiques & Collectibles" ("Reader, I marketed him").' But once again it points to a lack of competence on Google's part. And the long self-exculpatory comment by one of Google's employees frankly doesn't do much rescue them: as Nunberg's interleaved remarks on it politely but firmly make clear.
Then there are the famous one million free e-pub books that Google has recently released. It made good headlines. But someone at Computer Shopper has been trying to actually read them: Google turns classic books into free gibberish eBooks. His conclusion: 'Until Google decides it's going to check the text after it's been through the OCR process, Project Gutenberg remains the best destination for free eBooks.'
And so it goes on.
***
My thanks to the settlement administrator at Rust Consulting, who was kind enough to email me to tell me that they had not only received my email, with the attached scans of my opt out letter, but the letter itself had finally arrived in the post.
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| The Green Man |
[31 August, 2009] |
I met a Green Man today, queuing for a cuppa at the drinks stall at the National Forest's Wood Fair at Beacon Hill, Leicestershire.
For wonder of his hue men had,
In his semblance to be seen:
He moved like one gone mad--
And overall, bright green.
[More]
The translation from Gawain and the Green Knight is by ![[info]](http://l-stat.livejournal.com/img/userinfo.gif) artnouveauho.
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| The Google Book Settlement and Works in Manuscript |
[29 August, 2009] |
The Google Book Settlement has this in common with literary works: that every time I look at it, something fresh strikes me. But in the case of the settlement agreement it's usually another trap waiting for someone.
With all we have heard about it so far, we have yet to hear anything about Google's designs on manuscript archives. Yet the definition of 'book' laid down in the opening section of the settlement agreement has been carefully drawn to include some manuscript materials:
"Book" means a written or printed work that (a) if a "United States work," as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is subject to a Copyright Interest. [My emphasis.] Section 1.16
A lot of authors and literary estates have deposited their archives with university libraries in the US: this includes a large number of authors from the UK. It is, to say the least of it, unlikely that they envisaged the prospect of Google's scanning their rough drafts and putting them online. I wonder how many authors and literary executors in this position have yet realised that they need to develop a policy on what they will allow Google to digitise, display and sell?
The definition in the settlement agreement continues: 'The term “Book” does not include … personal papers (e.g., unpublished diaries or bundles of notes or letters)'. But that still leaves a lot else that authors and their families might prefer to keep for the eyes of trained researchers, who will quote a few plums, with permission, in academic publications or biographies, and play nice with the copyright holders in order to obtain that permission, and perhaps some privileged access.
There is something intellectually incoherent about planning to digitise parts of any manuscript archive on the basis of whether the pages are 'bound together' or not.
***
My post on opting out (24 August) was briefly glimpsed in the Google Blog Search index earlier today. But now it has vanished again.
***
In a different part of the wood, I had a very pleasurable moment earlier today, when I found a nice old copy of the Septuagint, the Greek translation of the Hebrew scriptures made in Alexandria in the third and second centuries BCE, on my favourite local market bookstall for just £7.50. Three fat volumes, published in 1848 by Oxford University Press: nice clear print, and fully interleaved with blank pages for notes. Some long-dead Victorian theology student has very thoroughly annotated the first 25 chapters of Genesis: and no more.
I have always fancied a Septuagint, but this is the first secondhand copy I have ever seen. Last time I looked up the price of a new copy, it was over £50: more than I could justify for something that I cannot tell myself is an essential research source.
Just out of interest, I looked up the Septuagint on Google Book Search. There are several early nineteenth-century editions, but it takes more careful scanning than Google cares to pay for to digitise Greek text in a form that may be read with comfort. In each of the ones I looked at, the text was blurred, sometimes quite badly blurred.
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| Google Book Settlement: More on Opting Out |
[27 August, 2009] |
The United States postal service has lost track of my priority certified airmail letter opting out of the settlement. I rang the settlement administrator's office to see if it had arrived – no joy. I am glad I checked.
I was told I could scan my letter and send it as an email attachment.
Meanwhile, having one of the administrator's staff on the phone, I thought I'd check up on a couple of points.
He confirmed that, yes, if there is anyone who has opted in and registered their work and then regretted this and wished they had opted out after all, it is still possible to opt out: up until 4 September. An opt-out now will nullify an earlier opt-in.
The reverse is also true.
He also confirmed that you don't have to list your works in order to opt out, though if you want Google to remove them from its Book Search (or transfer them to the Partner Program if you prefer) it is the convenient way to do it. But if you are pushed for time you can opt out and sort out your publications after the deadline.
***
Instead of being quickly indexed and then mysteriously vanishing, my posts are now arriving in Google's search index a full week after I post them.
***
For a bit of light relief, I have been studying the history of copyright. Well, it is more fun than the settlement agreement.
The Swedish writer Karl-Erik Tallmo has a very good site on the subject with some useful documents. It includes a facsimile and transcript of the first ever copyright statute, An Act for the Encouragement of Learning (1710).
Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons in this present Parliament Assembled, and by the Authority of the same, That from and after the Tenth Day of April, One thousand seven hundred and ten, the Author of any Book or Books already Printed, who hath not Transferred to any other the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the same, shall have the sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years, to Commence from the said Tenth Day of April, and no longer; and that the Author of any Book or Books already Composed and not Printed and Published, or that shall hereafter be Composed, and his Assignee, or Assigns, shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of fourteen Years, to Commence from the Day of the First Publishing the same, and no longer; And that if any other Bookseller, Printer, or other Person whatsoever, from and after the Tenth Day of April, One thousand seven hundred and ten, within the times Granted and Limited by this Act, as aforesaid, shall Print, Reprint, or Import, or cause to be Printed, Reprinted, or Imported any such Book or Books, without the Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, Signed in the Presence of Two or more Credible Witnesses; or knowing the same to be so Printed or Reprinted, without the Consent of the Proprietors, shall Sell, Publish, or Expose to Sale, or cause to be Sold, Published, or Exposed to Sale, any such Book or Books, without such Consent first had and obtained, as aforesaid, Then such Offender or Offenders shall Forfeit such Book or Books, and all and every Sheet or Sheets, being part of such Book or Books, to the Proprietor or Proprietors of the Copy thereof, who shall forthwith Damask and make Waste-Paper of them: And further, That every such Offender or Offenders, shall Forfeit One Peny for every sheet which shall be found in his, her, or their Custody, either Printed or Printing, Published or Exposed to Sale, contrary to the true intent and meaning of this Act, the one Moiety thereof to the Queens most Excellent Majesty, Her Heirs and Successors, and the other Moiety thereof to any Person or Persons that shall Sue for the same, to be Recovered in any of Her Majesties Courts of Record at Westminster … Provided always, That after the Expiration of the said Term of Fourteen Years, the sole Right of Printing or Disposing of Copies shall return to the Authors thereof, if they are then Living, for another Term of Fourteen Years.
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| Google Book Settlement: Some Opinions |
[27 August, 2009] |
I was told today that if a writer who has already submitted a claim under the settlement and registered their books now regrets this, and wants to opt out, they can change their minds and opt out at any point before 4th September. It was my informant's understanding that the later opt-out would take precedence, and the claim would be nullified.
I offer this information in case it may be useful to anyone.
My informant added the usual disclaimer: he is not a lawyer.
But I have no doubt the point could be checked by a phone call to the settlement administrator.
(Phone calls are free, numbers here: http://www.googlebooksettlement.com/help/bin/answer.py?answer=118721&hl=en
To reach a real person, wait through a long menu until you arrive at option 9...)
[Post Scriptum: Checked with the settlement administrator's office by phone on 27 August. My informant was correct. It is possible to opt out at any point up to 4th September, even if you have previously registered and claimed your books.]
I have posted a page of responses to the Google Book Settlement on my website.
Andrew C. Devore, representing the Steinbeck Estate and others, in a letter to the court:
For authors who do not opt out, the settlement if approved would impose a complex scheme for the wholesale allocation of rights and remedies, and compensation for exploitation of those rights, in the digital world. And it would cement that scheme in perpetuity in an area of commerce that has seen explosive growth in just the last five years, and that may well prove to be the most important and valuable channel for the distribution and exploitation of creative works.
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| Google Book Settlement: Opting Out |
[24 August, 2009] |
I found that the toughest part of opting out of the Google Book Settlement was making a list of my publications, so that they could be removed from Google's Book Search corpus. It is not that my publication record is that impressive: it's just that I have bits and pieces of essays, poems, and translations scattered through a number of multi-author volumes.
It was when I discovered that Google have digitised Award-winning Poems from the First Elizabethan Poetry Award Competition, a collection of children's prize-winning poems published in 1967 and aimed at the pockets of proud parents and other relatives, that I realised I had better be pretty thorough. I cannot imagine how a copy fetched up in the library of the University of California. Perhaps someone was researching the poet James Reeves, who wrote an introduction.
In the end, I included even my Ph.D thesis in the list. The settlement agreement defines a 'book' as 'a written or printed work that [within various provisos] was published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form' (my emphasis). I don't think Cambridge University Library would hand my thesis over to Google's scanners, but what do I know for sure any more? One of the effects of the Google Library Project is that it has put a big dent in my trust in the integrity, law-abiding nature, and general common sense of academic librarians.
The toughest part of listing my publications was finding out the ISBNs of editions of which I did not have an author's copy. Between them the Google Book Search, Amazon, and Bookfinder supplied the missing information.
I also dug out all my contracts (it involved a trip to the attic to find some of them), and established that, yes, I own, outright, with no qualifications, the digital/online/electronic rights of everything I have ever published in print. Also, in the case of most of my publications I never licensed the US rights. Among the offensive features of the settlement agreement are the provisions that assign publishers income from rights that have never been licensed to them.
It is not, in fact, necessary to list all one's publications in order to opt out of the settlement. If time is short (as it is) and the whole business is horribly complicated, you can, I believe, opt out now and make arrangements for your publications later, with the proviso that if you want them removed or excluded from the corpus, you must contact Google on the matter by 5 April 2011. I think that's so; but I guess, if that was my situation, I'd check for sure with the Settlement Administrator.
[Post Scriptum: Checked with the settlement administrator's office by phone on 27 August. If you are opting out and want your books removed from the Book Search (or transferred to the Partner Program) it is convenient to arrange this and supply a list at the point when you opt out, but it is not necessary: you can sort that part out later.]
It is possible to phone the Settlement Administrator's office free of charge from most countries. The Settlement Administrator is, of course, independent (though hired by Google, I believe). I rang them last Wednesday and found the person I talked to helpful and professional.
The phone numbers are here: http://www.googlebooksettlement.com/help/bin/answer.py?answer=118721&hl=en
You have to wait through a nine-number automatic menu before you reach a real person.
Things I was told:
i) If you opt out by letter, rather than online, they will send written confirmation of receipt, but only if you expressly ask for this.
ii) If you want to specify that your books should not be digitized, and that any that have been digitized should be removed, you must state that you want this in your letter: it won't be done automatically.
(The settlement website makes it clear that there is an alternative option: transferring your books to the Partner Program.)
iii) I asked whether it would be all right to give my contact address as c/o my agent's office, rather than my own home address. She said that that would be all right 'as long as your agent doesn't mind'. The Settlement Administrator is using a box number. I didn't see why I should send my private address to a box number; or have it passed on to Google, either.
iv) Though some authors have sent their opt-out letters to the court, they only need to go to the Settlement Administrator.
v) There is no reason why you shouldn't opt out both by letter and online, if you want, if you are the kind of person who always likes to play things safe.
The online opt out form is here:
http://www.googlebooksettlement.com/r/enter_opt_out
There is more info on opting out on the settlement website: see http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q18
One point I found on the website: in order to opt out you have to specify which sub-class you are opting out from: author or publisher.
Opting out, I believe - not sure where I found this - has to be 'by close of business' on Friday 4th September. I assume that is New York time, but that may be a point worth checking. Maybe it is Minneapolis time? The Settlement Administrator is in Minneapolis.
If you opt out by letter, it is supposed to be First-Class Mail, postmarked on or before September 4, 2009. So if you opt out by post you have a little more lee-way there. Better hope the postmark isn't smudged, though.
I opted out by letter, and since I was (of course) posting from the UK, I sent it by fast certified air mail (Airsure).
Why did I opt out by letter? Partly, I have an old-fashioned faith in the virtues of hard copy. Partly, the message options on the online form didn't seem to me to completely fit the case. I preferred to send my own message to Google.
One clause I adapted from some other opt-out letters I found on the web: 'These instructions include but are not limited to the following publications: '.
Why 'include but … not limited to'? Partly in case I have forgotten something. But chiefly in case someone, somewhere, has reprinted some of my work without permission. Do I sound paranoid? It has happened more than once. It's always translations: too many people can't seem to get their heads round the idea that there is copyright in original translations.
Why did I choose to opt out?
First, to preserve my rights intact.
Secondly, because the Google Library Project, and the Google Book Settlement, form an attack on the legal principles that sustain the copyright system, and I refuse as a matter of principle to endorse or connive at that attack.
Do I think other authors should opt out?
Not my affair. What I want is for other authors to be fully informed, and to make informed choices.
The Google Book Settlement, if it is accepted by the court, will have the effect of a contract: a contract that will bind authors and their heirs for the duration of their copyrights. Professional writers with any sense read contracts very carefully and weigh them up.
I think that in their own interests authors should examine the settlement agreement at least as closely and critically as they would scrutinize a contract from a publisher.
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| The Google Book Settlement: Links, Continued |
[22 August, 2009] |
The US travel expert and author Edward Hasbrouck, co-chair of the National Writers Union book division, has posted a very valuable analysis of the Google Book Settlement and the choices facing authors.
He has also posted a useful set of links to web pages, blogs and documents on the settlement.
He has some interesting things to say about Michael J. Boni, chief legal counsel for the Authors Guild. As I have mentioned elsewhere, Google has undertaken, if the settlement goes through, to pay the lawyers for the Authors Guild $30 million.
The author Kathleen Rowland has written to the court to object to the payment as excessive. She has asked the court to ascertain 'how this attorneys' fee provision was negotiated' and to satisfy itself there was 'no … collusion' involved.
Among the other letters to the court is one from the Spectrum Literary Agency dated 5 May, recording the opt-outs of a number of sci-fi and fantasy authors whom they represent, including Lois McMaster Bujold, Mike Resnick, Larry Niven, David Eddings, and the Robert A. Heinlein Estate.
The Spectrum Agency states in its letter: 'We reject Google's willful misinterpretation of "fair use" in copyright law to mask outright piracy.' Further on it notes: 'Google's one-size-fits-all opt-out forms can only lead to confusion and error. Depending on the work, the author may control all rights, or have licensed print rights to a publisher (though sometimes with approval of sublicense deals) but the author may control electronic and foreign rights.' Absolutely. And in such cases the Google Book Settlement agreement has no business allocating payments to the publisher.
One of the best places on the web to keep up with informed commentary on the Google Book Settlement is James Grimmelmann's blog The Laboratorium. Tonight he has just posted a long analysis of Scott E. Gant's Objection to the settlement. Professor Grimmelmann wants to find a way 'fix' the settlement, in what he sees as the public interest - that's the US public, of course. He is concerned about the 'orphan works' issue. Mr Gant wants the pseudo-contract element in the settlement agreement declared out of order. I want to see Scott Gant prevail: but I very much appreciate James Grimmelmann's willingness to share his knowledge and facilitate study and debate.
He has some interesting older posts on Harry Potter, too.
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| Google Book Settlement: More Links |
[21 August, 2009] |
A fine opinion piece about the Google Book Settlement by Dr Lynley Hood in New Zealand, which appeared on Tuesday, vanished rather quickly from the Google index: Google Steals Taonga, Rips Off Law Commissioners.
The Otago Daily Times reported this week that the New Zealand Society of Authors was urging the government to conduct an inquiry into the settlement.
Something that is very clear to me is that huge numbers of authors worldwide whose rights would be affected by the settlement if it goes through are only just learning about the whole affair: a bare two weeks before the opt-out date.
I was very interested in what Scott Gant says in his Objection about the notice requirements for a class action settlement. He cites Rule 23(c)(2)(B): 'the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort', and a ruling on this by the Supreme Court: 'We think the import of this language is unmistakable. Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort.'
It has never been easier to find contact details for living authors. Very often, all you have to do is google them. But Google Inc. is loath to do this. Could it be that they don't really want to find us?
There was an excellent blog post on the settlement by Professor Robert G. Picard yesterday: Google Settlement Steals Rights and Rewards Appropriation:
The Google settlement will essentially rewrite copyright law by allowing the company to use the material without permission, without negotiating how the material will be used, and without negotiating compensation and payment provisions. It is particularly offensive because the court will be saying the government doesn’t have to protect authors’ rights, but authors’ have to protect their own rights. This is a significantly different approach from that which prosecutors and courts have taken in the cases of music, game, and software file sharers who have violated copyright on the Internet.
One of the things that is very apparent is that many of the people who are coming out loudest and clearest against the settlement are authors: authors who have actually read the settlement agreement.
The Science Fiction Writers of America have a good statement listing some of the problems presented by the settlement. They recommend that authors consider their options with care.
The National Writers Union also has a good statement on the settlement.
Meanwhile, the Authors Guild keeps coming out with, I am sorry to say it, sheer propaganda:
There’s not much time left for authors to opt out. What should I do?
Short answer: nothing.
Longer answer: Opting out of the settlement is for authors who want to preserve their right to sue Google themselves. We don’t think there are any such authors.
My answer: Opting out of the settlement is for authors who don't want to find themselves bound forever in a hugely complicated, non-negotiable pseudo-contract with numerous problem clauses.
As for suing Google: why would you want to do that? This is what you'll find on the Google settlement site:
The online opt-out form includes a check-box beside the words "Submit to Google my request that Google not digitize the books identified above or, if Google has already digitized any or all of these books, that it not display material from the books, including snippets".
The settlement FAQ page states:
Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests, if the books or Inserts are individually specified, are in copyright, and the author or publisher has a valid and unchallenged copyright interest in their books and Inserts.
Alternatively, if, notwithstanding the decision of an author or publisher to opt out of the Settlement, the author or publisher would like Google to contact them regarding Google’s use of their books or Inserts other than through the Settlement, the author or publisher can check a different box on the opt out page.
And so there is: next to the words "I request that Google contact me to discuss the books and Inserts identified above."
In other words, you can have your publications taken out of Google's Book Search service, or if you want them in the Book Search service but you don't want to be bound by the terms of the settlement agreement, you can transfer them to the Partner Program.
Anita Bartholomew of the Ask the Editor blog thinks that's a much better deal. I am not saying she is right. I haven't studied the matter.
The blog Plug Your Book gives in full an email sent out by Google at the start of May confirming that the Partner Program will continue in tandem with the settlement arrangements.
To sum up my main points: there are good reasons to consider opting out. They are nothing to do with suing Google. If Google does what it is offering to do, either remove books completely from its Book Search service or transfer them to the Partner Program, there would be little obvious reason to sue them.
Finally, on a lighter note: I am grateful to Lynley Hood for pointing me in the direction of this spoof TV news item on the Onion: Google Opt Out Feature Lets Users Protect Privacy By Moving To Remote Village.
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| Google Book Settlement: Objection by Scott E. Gant |
[20 August, 2009] |
I have just been reading the Objection to the Settlement by the lawyer and author Scott E. Gant, a specialist in class action litigation. What I can feel in my gut, he can quote good US law for.
He points out that the agreement is in part 'a commercial transaction, which the settling parties are improperly attempting to impose through the judicial process and the procedural device of Rule 23, rather than through the normal commercial process of negotiation and informed consent'. Absolutely: I could see that myself, but I lack the legal knowledge to point out exactly why it won't wash.
[According to Cornell University Law School's very useful website, Rule 23 of the Federal Rules of Civil Procedure governs class actions.]
Mr Gant continues: 'A central feature of the Proposed Settlement’s commercial arrangement is the sweeping transfer of intellectual property rights from class members to Google and its partners. … The use of Rule 23 to transfer class members’ intellectual property rights to Google and its partners is improper, and would violate the Rules Enabling Act’s express mandate that the Rules of procedure “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b).'
He cites 'the “case or controversy” requirement of Article III of the U.S. Constitution, as well as Federal Rule of Civil Procedure 82, which provides that the Rules of Civil Procedure “do not extend . . . the jurisdiction of the district courts”' in support of his contention that the court quite simply has no jurisdiction to approve this.
Further on he turns his attention to the way the settlement purports to rewrite existing contracts between authors and publishers. Again, he cites the rules for class action litigation and the Rules Enabling Act to show that this really can't be done.
He makes a number of other very important points.
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| Google Book Settlement: Some Links |
[18 August, 2009] |
All my recent posts on the Google Book Settlement and my paper The Google Book Settlement and European Authors are currently in Google's search index. Thanks very much to those who gave me support, especially lilithsaintcrow and herbmcsidhe.
It's time for a round-up of other links.
There is a very useful lecture about the Settlement on YouTube. It was delivered in April by Professor Pamela Samuelson of the University of California. She memorably punctuates her sentences with a merry cash-register cry of "ker-ching!" every time she mentions the financial benefits the settlement is geared up to bring to Google, the controllers of the new Book Rights Registry, and the law firms advising the plaintiffs.
Prize for the best title goes to Professor James Grimmelmann of New York Law School for his paper Google and the Zombie Army of Orphans.
There’s a class here that consists of all people who don’t realize they’re part of it. Under the guise of this class action, the named plaintiffs have been able to use the huge collection of orphan works copyrights as a bargaining chip. The named plaintiffs negotiated away everyone else’s rights, lining up all those millions of books for Google’s benefit. The orphans have become zombies, raised from the dead by the dark magic of a class action, turned into a shambling army under Google’s sole control.
Professor Grimmelmann and a number of his students have also set up The Public Index, 'a site to study and discuss the proposed Google Book Search settlement'. It includes the full text of the settlement agreement, fully searchable, and with hyperlinks. The hyperlinks link words and phrases to the innumerable special definitions scattered throughout the documents, and make the whole thing much easier to follow. Somebody must have put in a terrific amount of work cross-referencing the documents.
The site also has a very good set of documents and links: including links to essays on the settlement and links to blog posts.
There are more good links at the Great Google Book Grab site: and also a gallery of cartoons and images. I like this one:
For more satire see this blog post by Mike Cane.
The New York agent and attorney Lynn Chu has written several pieces about the Google Book Settlement. There is a list of most of them on this page (right-hand side panel). Her ideas about the settlement have been evolving since her first piece, Google's Book Settlement Is a Ripoff for Authors, but her views on it haven't mellowed.
No one single non-negotiable, no-advance, one-size-fits-all publishing contract can be imposed on all literary works in America. Every creative work has an individual value (or rather, multiple values, relative to every individual person) which varies not only from that of other works, but depends on many factors, like time, and the moment in time one chooses to calculate value. No court has the power to order everyone in the world to sign, at one arbitrary moment, a publishing contract, or worse, “deem” everyone to [have] done so by failing to reply to a private litigation settlement notice, the equivalent of Nigerian spam. – What's Wrong with the Google Book Settlement
I agree with her first statement (with the proviso that the words 'in America', though rhetorically useful to her, are in fact unnecessary). I hope that her second statement is correct.
More links to come later.
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| Now you see it – now you don't. |
[16 August, 2009] |
At the point when I made my last post, at some point in the small hours of yesterday morning, my LiveJournal post with the link to the online text of my paper The Google Book Settlement and European Authors was still indexed on the main Google web search. So was the page on my personal site that contains the full text of the paper. I didn't mention this at the time, but went discreetly to bed.
In the morning, I was not greatly surprised to find that the LiveJournal post with the link to the paper had disappeared from the main search index as well as the blog search index. The paper itself was still there, though.
There was a direct link to the LiveJournal post from a page on Tweetmeme: a few people had twittered about it. I was quite interested. I am not on Twitter myself. It looks altogether too distracting. That Tweetmeme page was turning up on searches on the main Google search index. That was how I found it. But at some point today, it vanished from the index. Completely, so far as I can see.
The page on my website that has the text of my paper has also been disappeared from the index.
As I recall it, two things brought Google to its present commanding position. First, a superior search engine. And secondly, the fact that we trusted their results. Google did not go down the road that some search engines did, of mixing paid-for advertising links invisibly with the rest. And in those days their search results were always supposed to be strictly objective, generated through their famous algorithm. Absolutely no hand-fiddling.
Earlier this year anxieties were being widely expressed that Google might censor the books in the Book Service. There is a provision in the Google Book Search agreement that allows Google to exclude up to 15% of the digitised works from its database, without giving a reason. The agitation died away after Google's representatives put their hands on their hearts and said the company had no intention of practising censorship. So that was all right, then.
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| The search engine ate my blog post |
[14 August, 2009] |
For much of today (13 August), my last post was at number three on the Google Blog Search for the search term 'google book settlement', on the 'Sorted by relevance' switch. I must admit, I contemplated this with satisfaction: and also a degree of respect for Google. I'd read on the web that they hand-pick results when it suits them. And I have little doubt their PR people are keeping a watchful eye on the Google Book Settlement debate. But I thought, here, after all, is a bit of proof that the Google search algorithm rules.
A short while ago, I revisited the search page, to see if there were any useful new posts. I wasn't very surprised to find that my post was no longer at number 3. After all, there are a lot of blog posts coming out all the time. Out of curiosity, I investigated to see how far it had dropped down the rankings. You know something? The rankings went down to 909. It wasn't there at all. Interesting, thought I. I searched under date, and went back to the point in time when it was spidered by the Googlebot. Couldn't find it. Then I started searching under unusual phrases in the text. No result. Finally, I searched under 'google book settlement wolfinthewood'. The only post that appeared was the one I made on 4 August. I searched under 'wolfinthewood'. The most recent post was the one on 4 August.
My 12 August post, with the link to my paper The Google Book Settlement and European Authors, has completely vanished from the Google Blog Search index.
In the space of a few hours.
Now, what would you make of that?
Fell down some crack in the code, do you think? Or could it possibly be that Google are hand-picking search results in their own self interest?
Surely they wouldn't do anything so evil -- and so destructive of public trust in them?
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| The Google Book Settlement: Latest Statement from the Authors Guild |
[12 August, 2009] |
My paper on the Google Book Settlement is finally finished, and may be read online, or downloaded.
It begins with a summary of where I have arrived:
The proposed Google Book Settlement represents an attempt to use the machinery of a private settlement in a civil law case to overturn fundamental principles of national and international copyright law in the interests of Google Inc., a wealthy corporation. It seeks to legitimate a massive appropriation of rights in American copyrights from authors worldwide. It aims to bind authors and their heirs and assigns in perpetuity, in many cases without their express agreement, to a non-negotiable contract of near-stupefying complexity containing numerous provisions detrimental to their rights. It intrudes into existing contracts (including contracts signed outside the US), in many cases assigning to the publisher rights that the author has never licensed.
It is my hope that the government of the UK, in conjunction with the EU, will act to uphold the rights of British and European authors and copyright-holders under international law, sustain them in the unhindered enjoyment and exercise of their copyrights, and protect their property in those copyrights from harm and the destruction of value.
Continue reading from here
Or download it:
Portable document format (pdf)
Word document (doc)
Open document text (odt)
Most of what I have said about the settlement over the last few weeks is in the paper somewhere, reorganised, augmented, and in some places corrected.
The latest statement from the Authors Guild
The most recent Google Book Settlement news to hit the headlines on the web concerns the William Morris Endeavour agency, which has advised all its writers to opt out of the settlement. I am grateful to lilithsaintcrow for posting in full the response of the Authors Guild to this piece of news (they want their response spread around, it seems). lilithsaintcrow doesn't want arguments about it on her journal, which I completely understand. I have, however, read it with very great interest.
Not for the first time I wonder, why is the Authors Guild shilling so hard for this deal? It really isn't such a brilliant deal. The 63/37% split in revenues they rave about comes before a hefty chunk is paid out to fund the Book Rights Registry – between 10% and 20% is the estimate mentioned in the settlement documents, and there is nothing to stop it going higher.
Why do the Authors Guild get so visibly anxious when anyone refuses to march along with them into Google's gently smiling jaws? What is the hidden agenda? If the deal is so good, why do they have to plug it so hard?
Now they are offering William Morris clients the chance to undo their opt-outs. What about people who opt in (or, worse, find themselves opted in by default) and discover it is a big mistake: will they help them opt out?
But this is the part of their memo that has really caught my attention:
If you want to allow your book to be searchable in Google’s database, and you want to be fairly compensated for Google’s use of your work, and you want to retain complete control over whether, and how, your book is displayed or sold to users, you should remain in the settlement. [My emphasis.]
So they are saying that people who opt out of the settlement will find that Google will display their books online, and even sell them, regardless of their opting out, and without compensation? That is very very interesting.
All along Google has insisted on the legality of its actions. Many US copyright lawyers seem to think its 'fair use' defence would have stood up in court. But what the Authors Guild is saying here is that they believe that if any writers stand out against the settlement, Google will simply use their work anyway and rob them blind. Come on like a gangster, in fact.
A few weeks ago I would have passed over this. I would have assumed that some publicist at the Authors Guild had got a bit over-excited.
But I have seen this suggested before.
On 20 May the Publishers Association of the UK published a briefing for its members on the Google Book Settlement. It contains the following memorable passage:
If the publisher wants to preserve its right to sue Google and the libraries in the United States, under U.S. copyright law, for copying its Books from U.S. libraries and displaying snippets of the Books in the United States, then the right strategy would be to opt out of the Settlement entirely. In adopting this strategy, however, that publisher should understand that Google can use all of the publisher’s Books, as Google sees fit (which could include scanning and displaying portions of the Book, in snippets or otherwise), unless and until the publisher brings a copyright infringement suit resulting in a victory or in a settlement with Google that provides otherwise.
This passage is in italics in the document. Passages in italics "[denote] specific questions formally put to the Association of American Publishers' lawyers, Debevoise and Plimpton, by the PA and the FEP on behalf of its members, and their verbatim responses". In other words, it is straight from the horse's mouth. Debevoise and Plimpton are the lawyers who have negotiated the settlement with Google on behalf of the AAP.
Despite that, the first time I read this, and the second, and the third, I didn't take it seriously. I didn't see a reason, quite honestly, to suspect Google of an intention to go outside the law, as creatively interpreted by their lawyers. I thought it was an attempt to put the frighteners on UK publishers. But now I hear the same tune coming from the Authors Guild.
And it reminds me of something else I've read, more recently, which again I dismissed at the time. A US agent called Chip MacGregor said on his blog the other day:
In case you're not aware, Google was getting ready to scan millions of copyrighted books and make them available to readers -- without offering any compensation to authors (or publishers, for that matter). Think about that for a minute... A vast power grab for content, without any consideration for the creators or the owners of all that intellectual property.
What I hear three times, from different quarters, well-informed quarters, and spoken in all seriousness – well, it makes me think.
And put this together with the unmistakable whiffs of anxiety that are coming off the Authors Guild, and even the AAP: well.
Back in June Allan Adler, vice president of legal affairs for the Association of American Publishers, had this to say about the court-ordered delay in the opt out date and final hearing: "The downside is that it gives people who are opposed to this more time to rabble-rouse."
When I read this originally, I was filled with angry scorn. If you think what you are doing will bear hard scrutiny – as it must – then you don't use contemptuous words like "rabble-rouse": contemptuous both of the critics of the settlement and the writers and publishers in the US and world-wide (the "rabble") who the AAP is afraid may turn against it.
Whenever I have felt tired of this project – which is often; those twisty little clauses are hard going – I have thought of Mr Adler and this has stiffened my resolve. You get a good adrenalin rush from anger.
But today I began to feel sorry for him. I began to suspect that behind that contemptuous way of speaking there is actual fear.
Note that the Google Book Settlement has a secret appendix. It deals with the right of either side, Google and the AAP/Authors Guild, to terminate the agreement 'if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met'. Those conditions are being kept secret. However, Irvin Muchnick, the lead respondent in the landmark case Reed Elsevier v. Muchnick, thinks he may be able to guess what is in the secret clause. He thinks that if enough authors opt out, the secret clause could trigger a termination of the agreement.
And what would happen then?
If the Authors Guild and the AAP really fear that Google is capable of behaving like the Mafia of the publishing world and going outside the law to publish complete works in copyright online without a licence, are they responding in a sensible way? Not on my reckoning. I have been studying the robbers and robber barons, gangsters, fences and con men of history for thirty-five years now. I guarantee it: if you try to strike a legal deal with a robber baron, you will find the law used against you, ruthlessly, while he will resist every attempt to bind him by it to the furthest extent that he can. To look at it from another point of view: if you profoundly mistrust someone, and believe them capable of serious law-breaking, it is not a good idea to enter into a partnership with them.
This is all very murky, but one thing is clear: Google is indeed prepared to publish works in copyright online without a licence. That is exactly what is being proposed under the settlement agreement. The differences between the 'vast power grab for content' feared by Mr MacGregor and what is being proposed under the settlement agreement are two: 1) the device of the class action settlement is intended to push the envelope of law far enough to keep Google's actions within it and 2) registered authors and publishers (such as the members of the Authors Guild and the AAP) will be permitted to reserve control over their works. They won't receive much money; at least, I don't reckon most of them will; but they do get to veto, if they wish, having their own books displayed or sold online by Google. Apart from that, what's projected to happen will be – 'a vast power grab for content'.
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| More Noteworthy Clauses in the Google Book Settlement |
[4 August, 2009] |
I am in a maze of twisty little clauses, all alike.
Yesterday I went through the Google Book Settlement again carefully from beginning to end, clause by clause, to make sure there was nothing I had missed. I'll start with the wrily amusing part: Attachment K (number 11 out of the 13 attachments to the Settlement Agreement) is a list of newspapers and magazines in each country in which the parties to the Settlement agreed, as a condition of court approval, to place a notice to alert rights-holders affected by the Settlement (that is, pretty much every author, literary executor and publisher in the world). This is the list for the UK:
Sunday Times (London Times)
Daily Telegraph
Daily Mail
News of the World
Sunday Mail (Scotland)
Economist
International Herald Tribune
Wall Street Journal
Newsweek
I doubt whether the three US organs listed are read by many in the UK besides expat Americans. That's ok. The Sunday Mail is, apparently, the top-selling Scottish tabloid. As I am not Scots, I have no idea whether it is much read by Scottish authors and publishers. The Sunday Times, the Economist - fair enough. But 'News of the Screws'? 'The Daily Hate Mail'? (Which I see has been described by the website British Newspapers Online as 'a newspaper for Stepford wives'. Neat.) Then there is the 'Daily Torygraph' (strapline: 'the house organ of the Conservative party'). Well, ok. We know Frederick Forsyth reads it.
I begin to understand a bit more about why it took me months to begin to find out about the real implications of the Settlement; and why some of my academic friends still barely have a clue about it, despite being published authors and generally well-informed people. Conspicuously absent from this list: the 'Grauniad', the Independent, the Times, the Observer, the London Review of Books, the Times Literary Supplement.
One of the things I have found very worrying, studying the Google Book Settlement Agreement, is the generally inadequate advice and information that authors are being offered. For example, the website of the Writers Guild of Great Britain has on it a letter which was sent out to members in May. It states: 'The outcome of the “class action” case means that the author of each book scanned is being offered at least $60'. Sounds all right, if not exciting. At the current exchange rate $60 is about £35. However, it isn't correct. This is what the Settlement actually says will happen in the case of in-print books:
All payments under Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement ... shall be remitted by the Registry to the Publisher and flow through the royalty statements of the Publisher. The Publisher shall provide to the Author the appropriate splits or royalties as may be specified in the author-publisher contract for the Book or as the parties may otherwise agree. (Attachment A, 5.5 [see http://www.googlebooksettlement.com/intl/en-gb/Attachment-A-Author-Publisher-Procedures.pdf])
Interestingly, the Writers Guild had it right last autumn, when it reported in a news item: 'Google will pay at least $60 (£36.74) per title, and authors will receive a royalty.'
How much of a royalty? Who knows? It will be up to the publisher to give the author a share 'as may be specified in the author-publisher contract' - except that no existing contract will make provision for the Google Book Settlement - it may provide for electronic rights in some shape or form, but there may be room for a world of argument over what these rights cover and how the Google plans fit in - 'or as the parties may otherwise agree' - in other words, the publisher may toss the author whatever bone they wish. And if the author doesn't like it, he or she will have to go into arbitration in the US ('If an Author wishes to dispute the split or royalty rate paid by the Publisher on such revenues, Article VII [regarding arbitration] shall apply').
Unless the publisher is exceptionally mean, the author might be able to buy a few drinks down the pub.
Note that even if the publisher doesn't have a licence for the electronic rights and/or the US rights, Google will pay the money to the publisher.
Only in the case of books that are out-of-print, where the rights have reverted to the author, will the author receive the full $60. In the case of any books published after 1987 which are out of print but still under license to a publisher, the publisher will receive half the $60 - even if the author has retained the electronic rights; even if the author has retained the US rights. (For books in this situation published before 1987, the author-publisher split is 65%–35%.)
So: everywhere the cry goes up to authors: Roll up! Roll up! and claim your $$$ under the Great Google Give-away.
But the dollars are definitely jam tomorrow: they will not be paid for many months; and for most authors they really won't amount to very much money at all. And in return, authors will find themselves bound by what amounts to a non-negotiable perpetual contract with Google Inc (or its assigns), in the shape of an agreement so long, complicated and almost impenetrably tedious that it makes hardened lawyers blench. To quote New York agent and attorney Lynn Chu: 'Behold the Settlement Agreement in its 385 pages of clotted glory. You trust that thing?'
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| Google Book Settlement again |
[2 August, 2009] |
I have still not quite finished my paper on the Google Book Settlement: my partner has been down with 'flu; perhaps the dreaded swine 'flu, but who knows? Anyway, she's quite a bit better today.
Which left me a bit of time this evening to fill in the Publishers Weekly online questionnaire about the Book Settlement. The deadline for this is 4 August.
The penultimate question is:
In your own words, please explain your position on the settlement
To which I gave the following answer:
As a foreign (UK) author who has not published a book with 'an established American publisher' I am not eligible for membership of the Authors Guild. Yet the Authors Guild seeks to be certified by the court as my representative, and as the representative of authors and authors' estates in virtually every country in the world. It is attempting to opt us all in by default to what amounts to a perpetual non-negotiable immensely complicated multi-clause contract with Google and the new Book Rights Registry (on whose managing board foreign authors will have no representation). Under the terms of the agreement, authors will have no recourse to the courts in case of disputes, but only to arbitration by arbitrators chosen from a pool selected by Google and the Book Rights Registry. Moreover, the settlement agreement, in effect, rewrites existing contracts; for example, it allocates to publishers a share in any revenue from Google's use of the digitised texts, regardless of whether the author has, in fact, licensed electronic rights to the publisher. Also deserving of note is the fact that the settlement, if accepted by the court, appears to place the USA in contravention of the Berne Convention and the TRIPS Agreement by establishing a copyright licensing system for foreign authors.
The above comments do not exhaust my objections to the settlement, but I believe they make my position sufficiently clear.
***
A further objection I have is this: Google's proposal to allow individual consumers to access works 'in the cloud' from their own desk-tops will undoubtedly facilitate widespread piracy (as anyone can see who understands the capabilities of an ordinary PC). I think it likely that this will lead to a destruction of value in copyrights, and make it even harder for authors to earn a living (or even a useful supplement to their incomes).
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| Google Book Settlement: the Likelihood of Piracy |
[24 July, 2009] |
For earlier posts on the Google Book Settlement, see:
Google Book Settlement: the Background
How the Google Book Settlement affects European authors and rights-holders: 1
How the Google Book Settlement affects European authors and rights-holders: 2
Google Book Settlement: the Proposed Book Rights Registry 1
Google Book Settlement: Some Clarifications
Google Book Settlement: the Proposed Book Rights Registry 2
Google Book Settlement and 'Unclaimed Funds'
***
19. Under the Settlement Google Inc. proposes to deal with works differently depending on whether or not they are defined as ‘commercially available’ according to the terms of the Agreement. The Agreement defines a book as ‘commercially available’ at a given point if the rights holder or his or her licencee were offering it for sale new in the United States ‘through one or more then-customary channels of trade’. In that case Google will classify the book as ‘in print’ and will not make any ‘display uses’ of it, such as providing previews to searchers, including it in institutional subscriptions, or allowing consumer purchase of online access to it.
The definition of ‘commercially available’ has caused alarm among foreign publishers, since it seems to imply that books in print but not published or directly distributed in the US would be made available by Google to searchers (in preview) and customers (for online access), unless and until the rights-holders registered the works at issue with the Book Rights Registry and changed the settings, or applied to have them completely removed from the book corpus. However, following consultation with the lawyers who negotiated the Settlement on behalf of the AAP, the Publishers Association of the UK has reported that Google plans to classify any book as ‘commercially available’ if it can be purchased new from within the US through a website.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 1.28, 1.47, 1.48, 3.2.(b), 3.2.(d);
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B;
see also http://www.copyright.com/media/pdfs/Healyinterview.pdf]
If Google were to make a mistake in determining whether a book is available in the US, the Agreement lays down one ‘sole remedy’: Google must correct the mistake within 30 days. A lot of damage might be done to the value of a copyright in 30 days. If a rights-holder were to pursue a dispute against Google, over a mistake or a disagreement, their only recourse under the Settlement would be to submit themselves to arbitration by an arbitrator drawn from a pool that had been previously selected by Google and the Book Rights Registry. [see § 17].
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 3.2.(d).(i), (iv)]
20. The Settlement Agreement goes into some detail about the restrictions that will apply if a consumer should purchase a work through Google. The purchaser will be allowed to view the work online, but not to download an electronic copy, or to print more than 20 pages at a time, or copy and paste more than four pages at a time.
This is evidently supposed to reassure rights-holders that their works are safe from piracy. The fact that the Authors Guild and the AAP, on the one hand required these restrictions, and on the other hand were (presumably) satisfied by them indicates a remarkable technological ignorance on their part: which is, perhaps, particularly strange on the part of the publishers. To put it plainly: anything that is displayed on the screen of an ordinary computer can be copied and saved and/or printed by the user. Anyone who thinks otherwise has never investigated the use of the PrintScr key on their keyboard. For greater convenience, there are screen capture programs available online, some of them free to download. Screen capture is a perfectly legal technology with legitimate uses.
In the case of browsers, every image that appears on the screen is saved to the folder of temporary internet files, from which it may be afterwards retrieved. It is not clear whether Google plans to grant purchasers access to their books through an ordinary browser or some kind of proprietary software. Even if it is the latter, the act of reading the book will involve downloading each page to the computer, and there will probably be some kind of cache involved (where images and other files are saved temporarily to expedite access). The last time I programmed anything it was in OPL (remember that?) but I strongly suspect it would not be hard for a knowledgeable person to devise a program that will intercept the images of the pages and save them automatically.
The Settlement Agreement states that any pages printed will have a watermark identifying them as copyright, and including ‘encrypted session identifying information … which could be used to identify the authorized user that printed the material or the access point from which the material was printed.’ This sounds very secure, but if the page images can be captured, there is no reason why this would matter very much.
Once the images are available, it is an easy matter with modern optical character recognition software to extract the text; indeed, these days there is at least one free online service that will do this, as well as free software that can be downloaded. Even if Google embedded ‘encrypted session identifying information’ in every page, this would be lost in the conversion to text.
Kent Fitch, a programmer at the National Library of Australia, observed on his blog earlier this year that
Given the reality of inevitable piracy of digitised books, the interests of rights holders and Google are seriously misaligned. Google has little incentive to be very worried about piracy, and in any case, they're smart enough to know there's nothing they can do about it. All they need is to sell 40 odd copies (or get equivalent per-book institutional subscription revenue to their book database) and they’re in the black. If the sell 100, they've got a 200% return on investment, whereas the rights holders haven’t even covered the costs of the layout artist.
Digitised books from the Google repository will be pirated and there’s nothing that can be done about it. DRM wouldn’t help a bit, copies will be untraceable, watermarks will be removed.
He also points out that ‘printing’ can as easily be to a file as a printer: it is ‘up to the controller of the system on which printing is done’.
[http://ltmem.blogspot.com/2009/02/google-book-settlement-doesnt-address.html]
21. Another security issue was raised in a point made from the floor at the Columbia conference. The participant noted that regardless of the fact that the complete Book Search corpus was only supposed to be accessible from within the US, people outside the US could use a proxy server located within the US to access the service. No one responded to his point, and I think they did not understand it. However, he is right. Proxies are offered as a free service by some websites, and they make territories meaningless. It would probably be hard, even impossible, to fool the Google Book Service into letting one open an account with it from an address outside the US, but it is likely to be an easy job for those so inclined to access the extra preview facilities to be offered under the Settlement.
[http://kernochancenter.org/Googlebookssettlementrecording.htm; http://media.law.columbia.edu/kernochan/kernochangoogle090313tape3t.html]
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| Google Book Settlement and 'Unclaimed Funds' |
[23 July, 2009] |
For earlier posts on the Google Book Settlement, see:
Google Book Settlement: the Background
How the Google Book Settlement affects European authors and rights-holders: 1
How the Google Book Settlement affects European authors and rights-holders: 2
Google Book Settlement: the Proposed Book Rights Registry 1
Google Book Settlement: Some Clarifications
Google Book Settlement: the Proposed Book Rights Registry 2
***
One provision of the Settlement that has attracted much critical comment is the plan for distributing what the Agreement terms ‘unclaimed funds’, revenues flowing from the use of works belonging to rights-holders who have not registered with the Book Rights Registry (the so-called ‘orphan works’). These funds would be held for five years; then what remains unclaimed would be applied in the first instance to paying ‘the operational expenses of the Registry’.* Any funds left after that would be distributed among the rightsholders according to a formula that means that the more their own works have earned, the larger the share they would receive of the unclaimed funds; and finally, the remaining funds, if there were any, would be allocated to charities with educational objects, such as the promotion of literacy. This latter provision is plainly a sop to public opinion.
[http://www.googlebooksettlement.com/intl/en-gb/Settlement-Agreement.pdf § 6.3.(a).(i);
http://www.googlebooksettlement.com/intl/en/Attachment-A-Author-Publisher-Procedures.pdf § 8.1,2,3]
The bland language of ‘unclaimed funds’ glosses over the fact that this is money that cannot, in equity, be applied to the purposes of the Book Rights Registry, since that entity is to be set up purely to represent the interests of the registered rights-holders; nor is there any justification for dividing part of it among the registered rights-holders, since they have no copyright interest in the works that earned it.
Strong critics of this aspect of the Settlement Agreement include Pamela Samuelson, and James Grimmelmann, an Associate Professor at New York Law School.
[http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html;
http://www.acslaw.org/files/Grimmelmann%20Issue%20Brief.pdf;
see also http://paulcourant.net/2009/03/15/orphan-works-legislation-and-the-google-settlement/]
It seems a well-founded assumption that only a minority of rights-holders would be likely to register their works with the Book Rights Registry [see above § 9]. The ‘unclaimed funds’ would therefore make up the bulk of the revenues earned by the Google repository. It is noteworthy that the money is to be applied first to paying the expenses of running the Registry, and that the language used (‘any remaining funds’) clearly opens up the possibility that the whole of this money may be lavished on that task.
One quite persuasive inference from this is that Google Inc. and its partners in the Authors Guild and the AAP suspect that the revenues flowing from the proposed uses of the repository might turn out to be paltry; while the establishment and maintenance of the book rights database would inevitably swallow up a good deal of money [see above § 15]. Without the ‘unclaimed funds’ to draw on the Book Rights Registry and its database may not be an economic prospect.
The diversion of the income from the so-called ‘orphan works’ (in reality mostly works by non-US authors) would thus be a crucial feature of the whole scheme: and it is equally crucial that not too many of these ‘orphans’ are claimed by their rightful owners. Under the Settlement, one of the functions of the Book Rights Registry is to ‘attempt to locate Rightsholders with respect to Books and Inserts’. However, one cannot miss the point that every rights-holder they locate will reduce their available funding.
It may well be the case that the Google Book Settlement, if it comes into force, will function in a way quite similar to a Ponzi scheme: if every rights-holder whose work has been appropriated for the repository were to register a claim for the revenues earned by their work, the system would collapse.
*Post Scriptum
I spent part of the morning listening to a lecture delivered by Alexander Macgillivray, Senior Product and Intellectual Property Counsel at Google Inc.,at the Berkman Center, Harvard on 21 July. (Well, it was raining outside.) Macgillivray explained the calculation behind the way in which the 'unclaimed funds' are to be distributed to the registered rights-holders, and also clarified a couple of points. So I have amended my paper as follows:
If there were any money left [after paying the 'operational expenses' of the Book Rights Registry], it would be distributed differently depending on its source.
(a) If it was earned from advertising, or sales of access to works by consumers, it is to be used to top up the payments to the registered rights-holders until the sum arrives at 70% of what their works have earned from Google. The thinking behind this [as explained by Macgillivray] is as follows: under the Settlement, 70% is the notional percentage of a work’s earnings allocated to the rights-holders, but 10% of this will be sliced off by Google to pay for ‘operating costs’, thus arriving at the figure of 63%. The intention is that where there is money available from the ‘unclaimed funds’ it should be applied to returning this 10% slice to the registered rights-holders. If there is any money left after this, and only if, it is to be allocated to charities with educational objects, such as the promotion of literacy.
(b) If, after the ‘operational expenses’ of the Registry have been met, there are ‘unclaimed funds’ earned from the sales of library subscriptions to the repository, these are to be distributed in their entirety among the registered rights-holders.
Macgillivray was challenged to defend these provisions, but ducked the issue. He pointed out instead that there are a diversity of opinions about what should be done with this money; he suggested that anyone who wanted to see things done differently could lobby for legislation. Neither of which arguments offer any kind of reason to accept as legitimate a plan under which Google, the Authors Guild and the AAP collude over the disposal of money earned by works the rights to which they have not the faintest shadow of a title.
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