| 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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| Google Book Settlement: the Proposed Book Rights Registry 2 |
[22 July, 2009] |
First, an apology to anyone who read the comments to Saturday's instalment on the Google Book Settlement. I erroneously stated that the rights at issue were the electronic rights in a work. And so they ought to be, but the devisers of the Book Settlement Agreement have written a new contract for you (assuming you register with them). If your book is out of print but the rights have not reverted to you, revenues will be divided between you and the publisher regardless of whether your contract assigned the publisher a licence for the electronic rights. More on that below.
I also had not realised that under the US copyright system there is no right of typographical arrangement. Therefore if your book is out of print and the rights have reverted to you, the publisher does not retain an interest in the typography and design.
But I know now …
***
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
***
13. The Settlement specifies one of the main tasks of the Registry as the establishment and maintenance of a database of book rights information. This would include ownership of rights, and details of whether, and in which ways, the rights-holders wished their works in the corpus to be commercially exploited by Google.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 6.1.(b); http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 8.B]
This is a huge undertaking. At the conference in March held at Columbia Law School, Tracey Armstrong, President and CEO of the Copyright Clearance Center, the US collecting society that administers collective photocopying licences, commented on the amount and complexity of the data that would need to be assembled and organised. She pointed out that this would necessarily include information about ‘multiple rights holders per work, works within works, chapter and sub-chapter level rights, types of use or licence type,’ the latter depending on the choices made by the rights-holder[s]. The database would also have to track ‘ownership transfers, in bulk and individually, including inheritance’. All this, as she pointed out, ‘is a lot of ones and zeros’, a lot of data.
[http://kernochancenter.org/Googlebookssettlementrecording.htm; http://media.law.columbia.edu/kernochan/kernochangoogle090313tape3t.html]
And all this data would have to be continually kept up-to-date. It cannot be doubted that this would be an expensive business.
One may note, again, that while it has been estimated that the Registry would require between 10% and 20% of the revenues that are projected to flow from Google, this figure is not binding on the Registry’s directors [See § 9 above]. It might well turn out that the Registry engrossed a considerably higher percentage of the available income. Pamela Samuelson, lecturing on the Google Book Search Settlement at the University of North Carolina in April, memorably commented, ‘Most [collecting societies] … spend a lot of money on themselves’. At the Columbia conference the author Eugene Linden observed that he wanted to be sure that the proposed new system would benefit authors ‘and not just the intermediaries’.
[ http://www.youtube.com/watch?v=P-9MjgAheHg; see also http://www.slideshare.net/naypinya/reflections-on-the-google-book-search-settlement-by-pamela-samuelson, slide 16; http://kernochancenter.org/Googlebookssettlementrecording.htm; http://media.law.columbia.edu/kernochan/kernochangoogle090313tape3t.html]
14. Attachment A to the Settlement Agreement lays down what it terms Author-Publisher Procedures. Among other matters, it goes into detail about how the payments to be made by Google would be distributed.
[http://www.googlebooksettlement.com/intl/en/Attachment-A-Author-Publisher-Procedures.pdf]
Section 6.2.(c) deals with the case of out-of-print books where the rights have not reverted to the author. It states that for books with a publication date before 1987, the Registry will pay 65% of the revenues to the author and 35% to the publisher. In the case of books published during or after 1987, the split will be fifty-fifty.
No regard is paid to the question of who actually owns the electronic rights to the work. In the case of nearly all works published before 1987, and many that have appeared since, the electronic rights will not have been licensed to the publisher. In such cases the Settlement Agreement is effectively making a bid to rewrite existing contracts: assigning to publishers a right they did not previously possess, and revenues they otherwise would not receive.
[See also the comments by US literary agent Ashley Grayson: http://graysonagency.com/blog/publishing/the-google-settlement/]
15. Knowledgeable commentators on the publishing industry have predicted that if the Book Settlement is accepted by the court it will be followed by a large number of disputes over rights: and indeed, it doesn’t take much prescience to recognise this as an inevitable outcome.
Under the Settlement Agreement, disputes arising from it must be referred to binding arbitration, the arbitrators to be drawn from a pool of arbitrators to be chosen by Google Inc. and the Book Rights Registry. This applies to all disputes between authors and publishers about ownership of rights, as well as disputes between rights-holders and Google Inc. and/or the Book Rights Registry. However, an exception is made for disputes between publishers, who are allowed to use the court system to sort out their differences.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 9; especially 9.1.(a); 9.3.(a–c); 9.7]
This inequality of provision sharply points up the fact that authors are being corralled into a system that is likely to be less advantageous for them. Lynn Chu, a US attorney and literary agent, has this to say about the proposed system:
Access to your rights as an author at common law in federal court is very important, because U.S. courts have historically been very author-friendly, often overturning publisher contracts of adhesion to uphold author rights. … Expect arbitration to be publisher-centric, and focused on letter-of-the-contract analities, not author-centric. Arbitrators are never as open as federal courts to arguments of justice in equity to exploited authors.
[http://www.writersreps.com/feature.aspx?FeatureID=157]
By coincidence, as I was writing this section, the journalist Pam Martens published a powerful exposé of the corruption rife in the private arbitration system as it operates in the US: see http://www.alternet.org/workplace/141468/wall_street%27s_vast_private_judicial_system_exposed_as_fraud_/
Coming next: more on so-called 'orphan works'
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| Google Book Settlement: Some Clarifications |
[20 July, 2009] |
It has occurred to me, several days in, that some further clarification of my purpose in these posts is probably in order.
Back in May, when I realised what was being proposed under the Settlement, and also that several of my own works had been digitised by Google, I needed to know more about what this meant. In the UK, the advice on offer to authors seemed to be along the lines of ‘Google is handing out money, run along and register soonest.’ I couldn’t find anything in the way of a proper analysis of the pros and cons of the proposed Settlement, either for the individual author or in relation to the future direction of literary culture. This was in contrast to the US, where a lively, and in my opinion healthy, debate was in progress. However, the interests of US writers and scholars in this matter are not necessarily identical to the interests of Europeans: as a number of US commentators have acknowledged.
I am not a lawyer (the traditional disclaimer). I am a scholar, with a scholar’s instincts: research and analyse. I set out to investigate the Settlement.
What I found out disturbed me very much, as a reader and scholar as well as an author. It was a fairly demanding task, researching the Settlement, even for a trained scholar with good web skills, and that troubled me too. What is being proposed is in its nature complicated; the documents setting it out are not always easy to follow; and it is harder still to work out all the implications. I owe a great deal to several US legal experts who have given their views on the Settlement in papers and podcasts. A number of other perceptive commentators, writing or speaking from within the spheres of writing, publishing and librarianship, have also offered me much to think about.
I am not aiming in these posts to give advice to authors or rights-holders about what action they should take. My purpose is to explain why the Settlement is, as I see it, highly problematic: focusing primarily on how it bears on non-US rights-holders.
This said, I shall point out the obvious, which is that whatever they intend to do, it would be sensible at this point for authors and the executors of authors’ estates to dig out their old contracts, and if there are any reversion clauses that they should have formally invoked, and haven’t, this seems like a good time to do that.
Under the provisions of the Settlement, those who do not plan to opt out (which must be done by 4 September) have until 5 January 2010 to put in a claim for a share of the money which Google Inc. is offering to rights-holders whose work was digitised without their permission on or before 5 May 2009.
[http://www.googlebooksettlement.com/Final-Summary-Notice-of-Class-Action-Settlement.pdf]
Rights-holders who neither opt out nor put in a claim by 5 January may register their works with the Book Rights Registry at a later date, but will not be recompensed for the digitisation.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 13.3]
Rights-holders who do not opt out of the Settlement may still arrange to have their books removed from Google’s database, but only if they fill in the claim form for them on or before 5 April 2011. After that date, Google will only exclude their books from the database if they have not already been digitised.
[http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf, § 8.A]
It may be noted here that this implies that Google plans to continue digitising works belonging to rights-holders defined as Settlement Class Members into the coming years. Within the terms of the Settlement it can only digitise works published on or before 5 January 2009. Rights-holders of works that are scanned after 5 May 2009 will not be recompensed for having those works digitised. (Of course, dependent on their instructions to the Registry, they would be eligible for a share of any income flowing from advertising, institutional subscriptions, etc.)
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| Google Book Settlement: the Proposed Book Rights Registry 1 |
[20 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
***
10. The Book Rights Registry is charged with representing the interests of the rights-holders who are registered with them in connection with the Google Book Settlement. (It is envisaged that they may also represent them in arrangements made with companies other than Google, but at present this is only hypothetical.)
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 6.2.(b)]
The Registry is not charged with representing the interests of those rights-holders who do not register with them because they are in ignorance of the existence of the Settlement. Under the terms of the Settlement, no one represents the interests of this class of copyright-holder.
11. The Board of the Book Rights Registry is to consist of an equal number of publishers and authors. The Agreement does not specify how the directors are to be appointed. However, it does state that the Registry will be set up by the plaintiffs, that is, the Authors Guild and the AAP. At the conference at Columbia Law School, Michael J. Boni, lead counsel for the Authors Guild in negotiating the Google Book Settlement, told a questioner from the floor that the author directors will be directly appointed by counsel for the Authors Guild and the Guild itself, and the publisher directors will be directly appointed by counsel for the AAP and the AAP. The Authors Guild and the AAP have no plans to appoint directors who are not members of their respective bodies. This was also the substance of the answer to a question on this point put by the UK Publishers Association to Debevoise and Plimpton, the lawyers representing the AAP.
[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html;
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B]
12. There is no provision for foreign publishers and authors to be represented on the Board of the Book Rights Registry. This was raised as a point of concern from the publishers’ side by Herman Spruijt, President of the International Publishers Association, who spoke at the Columbia conference.
[http://kernochancenter.org/Googlebookssettlementrecording.htm;
http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]
There are many reasons why this is troubling. US and foreign authors and publishers cannot be said to have identical interests in the management of the Registry and the proposed operation of the book service.
One point that suggests itself concerns compliance. Since the digitised book corpus will only be accessible for commercial purposes within the USA, foreign rights-holders who register will find it difficult to know whether their work is being used or excluded from use in accordance with the terms that they have stipulated. Moreover, they arguably have a greater interest in Google’s taking steps to maintain territorial security; and there is no doubt that if Google is really serious about confining access to users within the USA, determined measures will have to be taken. I shall have more to say later on about the risks this project presents for losing control of content.
It may be noted that under the rules of the Authors Guild, membership is specifically restricted to authors of works that have been published ‘by an established American publisher’. This is another strong argument that its members cannot be taken as representative of the entire settlement class covered by the provisions of the Settlement, since many of the foreign authors whose works have been digitized by Google have never been published in the USA.*
[See https://www.authorsguild.org/join/eligibility]
Post Scriptum
*This is a matter of some importance, since in order for the Settlement to be ratified by the court, the judge must be satisfied that the Authors Guild is an appropriate representative of the class of people affected by it. This point was made by Pamela Samuelson in a lecture at the University of North Carolina on 14 April 14 2009.
[see http://www.youtube.com/watch?v=P-9MjgAheHg]
Coming next: the Book Rights Registry database; more on so-called 'orphan works'; procedures for resolving disputes
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| How the Google Book Settlement affects European authors and rights-holders: 2 |
[18 July, 2009] |
For earlier posts on this topic see:
Google Book Settlement: the Background
How the Google Book Settlement affects European authors and rights-holders: 1
***
7. Under the Settlement Google Inc. will make a payment of $45 million into a fund to pay rights-holders whose work has been digitised prior to the opt-out deadline (now 4 September) and who register with the Book Rights Registry. It is guaranteeing minimum payments of $60 dollars for a book, $15 for an ‘insert’, and $5 for a ‘partial insert’(a term that is not really defined) . If enough authors register that more money is required, Google has promised to provide the necessary additional funds.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, § 2.1.(b)]
The sums that are promised are risible, far smaller than are normally payable for copyright licenses. This is not fair payment; it is a pacifier for the desperate and the resigned.
Moreover, it has been pointed out that the initial amount that Google has put on the table is wildly insufficient to pay all the rights-holders of all the in-copyright works it has digitised, even at the low figures specified in the Settlement.
At the conference at Columbia Law School mentioned earlier, Jule Sigall, formerly of the US Copyright Office and now senior copyright counsel with Microsoft, commented that at a rate of $60 a book, $45 million is sufficient to pay out on 750,000 claims. He noted that Google on their own report have scanned 7 million books, of which he estimated that 6 million are still in copyright. He suggested therefore that the Settlement is founded on the assumption that 88% of rights-holders whose work Google Inc. has digitised and now plans to exploit will never come forward to claim payment for the use of their work. It is no doubt possible to pick holes in his exact figures, but the main point is clear: Google is making a giant bet that most of the rights-holders affected by the Settlement will never find out that their rights are being exploited and put in a claim for payment.
[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]
It may reasonably be assumed that, among those rights-holders who remain in ignorance of the Settlement and the benefits that are promised from registering their works, a very large number, probably a majority, will be foreign authors and their heirs and assigns. One commentator has referred to the Settlement in terms of a ‘foreign land grab’ of copyrights.
[http://blog.librarylaw.com/librarylaw/2009/04/google-book-settlement-orphan-works-and-foreign-works.html;
see also http://fictioncircus.com/grimmelmann.php]
8. The lawyers who negotiated the deal on behalf of the Authors’ Guild will be paid by Google Inc., to the amount of $30 million.
[http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 19]
9. Under the Settlement Google Inc. has promised to pay an initial $34.5 million dollars to establish a Book Rights Registry. It also promises to pass on to this Registry 63% of the revenues it receives from commercially exploiting the corpus of digitized books. The figure of 63% is arrived at by allocating a nominal 70% to the rights-holders, then slicing off 10% of this figure to cover Google’s ‘operating costs’.
The continuing costs of running the Book Rights Registry are to be funded by taking a percentage of the revenues passed on by Google before what is left is divided among those rights-holders who have successfully registered a claim. An attachment to the Settlement Agreement estimates that the percentage withheld by the Registry for running costs will be between 10 and 20% of what it receives from Google. It should be noted that this is an estimate only, and does not bind the Registry’s directors.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 2.1.(a), (c);
http://www.googlebooksettlement.com/intl/en/Attachment-I-Notice-of-Class-Action-Settlement.pdf § 8.B.]
Coming next: more on the Book Rights Registry
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| How the Google Book Settlement affects European authors and rights-holders: 1 |
[17 July, 2009] |
[For the background to the Google Book Settlement, see my previous post.]
1. Under US class action law, the Settlement, if accepted as fair by the court, binds all members of the class on whose behalf it was brought. In this instance, the settlement class is defined as ‘all Persons that, as of the Notice Commencement Date, have a Copyright Interest in one or more Books or Inserts’.
The Notice Commencement Date has been set by the court as 5 January 2009.
For the Settlement to be accepted as fair, the court has to recognise the plaintiffs – the Authors' Guild and the AAP – as fully representative of the membership of the settlement class.
Professor Pamela Samuelson of the University of California, an authority on intellectual property law, has noted that at the start of the legal process, Google Inc. disputed the claim of the Authors' Guild to be representative of the class of all authors everywhere. This would seem quite reasonable: a) the Guild's membership is quite small and b) Professor Samuelson points out that most of the authors it represents do not write the kinds of scholarly works found in the university research libraries which have been supplying the books for Google to digitize. She believes that if the proposed Settlement, which, of course, confers major benefits on Google, had not been agreed, Google would 'almost certainly' have strongly resisted the move to have the Authors' Guild certificated by the court as representative of the class of authors.
[http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html;
http://www.slideshare.net/naypinya/reflections-on-the-google-book-search-settlement-by-pamela-samuelson]
In the publicity given to the Settlement in the press and on the web the phrase ‘US copyright interest’ has been widely used in describing the scope of the Settlement. This initially led many non-US authors and rights-holders, including the present writer, to assume that the Settlement would only affect their rights in works published in the United States. However, this is not the case.
If this settlement is allowed to go through it will affect the rights in all books published on or before 5 January 2009 in any country that is a signatory to the Berne Convention.
[See Berne Convention 5.1: ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’]
2. Authors and rights-holders have the following choices in relation to the Settlement:
a) To opt out of the Settlement altogether, and retain the same rights over their books that they have always had. It should be noted that they may not be able to exercise those rights in relation to Google Inc. if the company infringes them and they themselves do not possess the financial resources required to take legal action to protect them.
Google has stated that if authors and publishers who opt out of the Settlement request the company not to digitise their work, or, if digitised, not to display any contents from it, it is its ‘current policy to voluntarily honor such requests’. However, the company has been known to change its stated policies from time to time, and this statement explicitly leaves open the possibility that it may do so in this case. Moreover, one author-publisher who has, in the past, opted out all her books from the Google Library Project and Book Search reported in November 2008 that in spite of this, two of her books had been digitised and put into the Google Book Search corpus.
The Publishers Association of the UK has warned its members that if a publisher opts out, ‘Google can use all of the publisher’s Books, as Google sees fit … unless and until the publisher brings a copyright infringement suit resulting in a victory or in a settlement with Google that provides otherwise.’
[http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704#q18a;
http://seekingalpha.com/user/293236/comment/299883;
http://www.publishers.org.uk/download.cfm?docid=4A07F799-400E-41CA-980B103898782A4B]
b) To opt in to the Settlement and raise any objections or concerns they might have with the court. This would enable them to have their views taken into account, but would mean that they were bound by whatever the court decided.
c) Assuming the Settlement goes through, to register their work with a new institution, to be called the Book Rights Registry, which will then be interposed as an intermediary between the rights-holders and Google Inc., to process claims, transmit any payments, and arrange for the arbitration of any disputes over ownership of rights. More will be said about the Book Rights Registry shortly.
d) To do nothing: in which case, if the Settlement goes through, they will find themselves bound by its terms, no longer able (even in theory) to sue Google Inc. for any use it may make of their work, and unable to make any claims for payment from the company unless and until they register their work with the Book Rights Registry.
Note: the deadline for opting out of the Settlement, or opting in and objecting to it, is 4 September 2009. (It was originally 5 May, but was extended.)
The Final Fairness Hearing by the court will be on 7 October 2009.
[http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704#q0]
There is information on how to opt out, object, or register on the Google Book Settlement website.
[http://www.googlebooksettlement.com/intl/en/; see especially http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en]
Several opt-out letters already received by the court may be found on the web here (search under 'opt out', or scroll down): http://news.justia.com/cases/featured/new-york/nysdce/1:2005cv08136/273913/
There is also a sample opt out letter here: http://timetooptout.blogspot.com/2008/12/how-to-opt-out-of-lawsuitsettlement.html
3. Google Inc. has a number of plans for commercially exploiting the huge and still-growing corpus of digitised books it controls. Not surprisingly, given the company’s core business model, it plans to run advertising alongside search results and online page views. It also plans to sell subscriptions to the whole corpus to libraries. It plans to sell individual consumers the right to read books or parts of books online and print out pages. Other uses it envisages include selling e-books, in the form of downloadable PDF files, selling Print on Demand copies, and offering custom compilations of pages and portions of books as course materials for the education and training markets.
In order to avoid being legally challenged under foreign copyright laws, Google plans (for the present) to confine these activities to the US market.
[http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf, §§ 2.1.(a), 4]
The Settlement states that a share of the money raised by these commercial projects will be funnelled through the Book Rights Registry to those rights-holders who register their interests. Rights-holders who are not registered will receive nothing in payment for Google’s exploitation of their work.
A further point to note here is that Google will take its substantial (37%) slice off the top before any money flows to the Registry, and through them to the registered rights-holders. This reverses the usual principle of book publishing, in which the author is paid his or her agreed due and the publisher aims to make a profit out of the income that remains.
It should also be noted that the costs of running the Registry – which could be very high indeed – will be taken out of the share that goes to the rights-holders. See more on this below.
Further note: it cannot be thought an irrelevance that on 2 June 2009 Google announced that it had plans to facilitate the sale of e-books by publishers in its Partner Programme.
[http://online.wsj.com/article/SB124395511580877123.html]
4. The Settlement proposes to overturn a key principle of international copyright law, by requiring that authors will have to register their works with the new Book Rights Agency in order to retain and protect their rights in them.
It is hard to see how it could fail to place the US in breach of its obligations under the Berne Convention, which expressly states, ‘The enjoyment and the exercise of these rights shall not be subject to any formality’ [5.2.].
Also highly pertinent is the clause which states: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form’ [9.1.]. This clause is subject to certain limitations and exceptions, set out in the one that follows it: ‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’ [9.2]. The conditions specified here, only in ‘special cases’, non-conflict with ‘a normal exploitation’, and protection for the author’s ‘legitimate interest’, are often referred to as the ‘three-part’ or ‘three-step’ test. It is not in the least hard to argue that the Google Book Settlement, if put into operation, would interfere with authors’ ‘normal exploitation’ of their works and damage their ‘legitimate interests’. It certainly does not conform to the established definition of a ‘special case’, for which see the paragraph following.
The limitations and exceptions specified in the Berne Convention are restated in the TRIPS Agreement of 1994 [Article 13] and the WIPO Copyright Treaty of 1996 [Article 10]. In a case brought under the TRIPS agreement, a WTO Dispute Resolution Panel found in 2000 that an exception made as a ‘special case’ must be narrow in its scope, ‘in quantitative as well as a qualitative sense’. The Google Book Settlement is drawn so as to encompass an enormously large number of rights-holders and works.
[http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html; http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm;
http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html;
see also http://www.wto.org/english/tratop_E/dispu_e/cases_e/ds160_e.htm; http://educationload.com/?p=1133]
Authors and rights-holders are reliant on nation states and organisations of nations (such as the EU) to take action to protect the rights guaranteed under international treaties and trade agreements.
5. There has been much use of the term ‘orphan works’ in the publicity given to the Google Book Settlement in the press and on the web. Initially, this misled the present writer, and has certainly misled other authors also, into assuming that the Settlement could not and was not intended to affect the rights of authors who were still alive and could easily be contacted through the usual channels.
In the past, the term ‘orphan works’ has been used to describe out-of-print works whose rights-holders cannot be traced. As any anthologist knows, tracing rights-holders can be a time-consuming and demanding process; that said, there are probably far fewer works whose rights-holders are genuinely untraceable than is sometimes stated or implied.
It is plainly Google’s hope and expectation that if the Settlement goes through it will be relieved of its obligations under copyright law to make a diligent search for all the individual rights-holders whose work it proposes to exploit commercially and negotiate licensing deals with them, directly or through their agents, at a fair market price.
If this is allowed to happen, it will be a very serious diminution of the rights and benefits currently enjoyed by copyright holders. It would, of course, be of considerable economic advantage to Google. It would take a great deal of work to do a diligent search for all the rights-holders, as Google, it cannot be doubted, is keenly aware.
Rights-holders who remain in ignorance of the Settlement will have their works exploited and will have no control over the uses to which it is put, nor will they receive any income from it. In many, perhaps most cases, those works will not be ‘orphans’, in the sense of having no identifiable owners. It will simply be the case that not enough effort has been put into the task of tracing the rights-holders. It is likely that the majority of untraced rights-holders will live outside the USA.
I shall say something later about the plans that Google and its new-found allies in the AAP and the Authors Guild have for spending the money that is earned by the works that belong to rights-holders who do not put in a claim for them with the new Registry.
6. Those authors and rights-holders who are aware of the Settlement and make the choice to register, either in order to receive a share of any money earned by their works or to be able to control (to the extent allowed by the Settlement) the uses to which their works are put, will have to provide full details of all their works that were published in book form up till 5 January 2009. This will include all their works and excerpts from their works that have appeared in collections with more than one author. (The Settlement Agreement terms such works ‘inserts’.) They will also have to register all editions.
The work involved in registering their rights will be a burden on all authors and rights-holders. For prolific authors, especially those who have had a long career, and for publishers, except the very smallest, it seems likely to prove an enormous burden, imposed on them by Google, a commercial company, so that it will not have to spend its own money clearing copyrights in the traditional, and legal, manner.
At a conference in Columbia Law School on 13 March 2009, Lois S. Wasoff, a copyright and publishing lawyer who has previously held positions with Houghton Mifflin and Simon and Schuster, made the following comments on the administrative burden that the terms of the Settlement would place upon publishers:
The publishers that don’t feel there will be very substantial resource demands for the most part are the publishers who haven’t yet started looking at the actual implementation. The publishers who have been on the website, started thinking about claiming their books, started thinking about how they are going to deal with the different categories, have – in my experience in talking to a range of people – expressed a lot of concern about the amount of resources it is going to require to comply with this. … The demands will be enormous. … There is also a concern about ongoing maintenance of the data. This is not going to be static data; populating it once is one issue, maintaining it, changing it, is going to be a problem. … Maintaining a database of rights holder information, of information about copyrighted works, is a lot of work.
[http://kernochancenter.org/Googlebookssettlementrecording.htm;
see http://media.law.columbia.edu/kernochan/kernochangoogle090313tape2t.html]
Coming next: the payments on offer to rights holders; and the Book Rights Registry
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| Google Book Settlement |
[17 July, 2009] |
For quite a long time I paid very little attention to the Google Book Settlement. I had formed the erroneous impression that it had very little to do with me, as a UK author.
Early in May I read an article in Booksquare and began to be more enlightened. After this, I did a lot of digging on the web, and the more I found out the more concerned I became. But Life introduced some distractions, and then Work demanded its pound of flesh, and I have only now had a chance to return to the matter.
Over the next few days, I intend to make several posts about the Book Settlement. This first one is a resumé of the background to the whole affair: how Google Book Search operates (many people who use it have only sketchy ideas about where the texts come from), how the law suit came about, and how matters have developed since it was brought. The tone is somewhat formal, since it is closely based on a briefing document I am drafting to send to my MP, MEPs, and various other parties.
******
Google Book Settlement: the Background
Google Book Search allows users to search the full text of a large and still growing corpus of digitised books. The books in the corpus come from two sources: the Partner Programme, under which publishers and authors submit their books for inclusion in the service as a form of promotion, and the Google Library Project, under which the books are supplied for scanning and digitisation by a number of partner libraries.
[see http://books.google.com/intl/en-GB/googlebooks/book_search_tour/index.html
and http://books.google.com/googlebooks/library.html]
Some of these libraries, notably the Bodleian Library at Oxford and Harvard University Library, have only permitted Google Inc. to digitise books from their collections that are out of copyright and in the public domain, but a number of US institutional libraries have provided for scanning very large numbers of books that are still in copyright. No attempt has been made hitherto to seek permission for this from the owners of the rights in these books.
At present, Google Book Search allows its users full view and downloads of the digital files of many (not all) books that are in the public domain, ‘limited preview’, or in some cases full view, of books digitised under the Partner Programme by arrangement with the publishers, and ‘snippet views’ of fragments of text from many (not all) of the in-copyright works that have been digitised under the Library Project.
Google Inc. has always argued that its digitising of in-copyright works and provision of ‘snippet views’ of them through Google Book Search constitutes ‘fair use’ under US copyright law. It continues to hold to that view.
[See for example http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html;
also the Preamble to http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf]
The Library Project was launched in December 2004. In June 2005 the Association of American Publishers (AAP) called on Google Inc. to stop scanning works copyrighted to its members for six months, pending discussions.
[http://advocate4libraries.blogspot.com/2009/05/deal-or-no-deal-will-there-be-google.html;
http://www.publishersweekly.com/article/CA609261.html]
In September 2005 the Authors Guild (an organisation representing about 8 thousand US authors) began class-action litigation against Google Inc. alleging that the unauthorised reproduction of works not in the public domain constituted ‘massive copyright infringement’ and noting that the company had announced plans to display digitised works on its website alongside paid advertisements.
[http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/authors-guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf §§ 3, 4]
In October 2005 five major US publishers, co-ordinated by the AAP, began litigation against Google Inc. alleging that the Google Library Project was a commercial project and that the company was ignoring the rights of copyright holders ‘in favor of [its] own economic self interest’. They stated that though Google was aware that these publishers wished them to seek permission before including their copyrighted books in the Google Library Project, the company, claiming ‘fair use’, maintained that it did not need to do this. The publishers asserted that they had been forced to bring the action ‘to protect and prevent ongoing and imminent harm to the copyrights in their books’.
[http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/mcgraw-hill/McGraw-Hill%20v.%20Google%2010192005.pdf]
In October 2008 AAP, the Authors Guild and Google Inc. announced a legal settlement. This settlement is set out in a document of 141 pages, with a further 15 documents attached. The full set may be accessed on this website: http://www.googlebooksettlement.com/intl/en/.
The progress of the case so far may be briefly summed up as follows:
In 2005 the plaintiffs took Google to court to compel it to stop scanning in-copyright books without the permission of the copyright-holders. Three years later the parties arrived at a settlement agreement under which Google is allowed not only to continue scanning books without troubling to obtain permission, but also to exploit the scans commercially in the US, by methods that include running advertisements alongside book texts, selling institutional and individual access to its corpus of digitised works, and even by selling e-books and print-on-demand copies.
The case was brought as a class action, with the result that if the settlement agreement is accepted by the court, it will become legally binding under US law not only on the publishers and authors represented by the plaintiffs, but also on an extremely large number of publishers, authors, and authors’ heirs and assigns worldwide.
The Google Book Settlement received ‘preliminary approval’ by the court in November, but since then opposition to the deal has been growing.
One more background note: at the end of October 2008, Google announced that it had then scanned and digitised about 7 million books, and that it considered that it was ‘just getting started’. In 2004 the stated target was 15 million books, but since that time it has been revised upwards.
[http://googleblog.blogspot.com/2008/10/new-chapter-for-google-book-search.html; http://www.libraryjournal.com/article/CA491156.html; http://www.weeklystandard.com/Content/Public/Articles/000/000/014/431afruv.asp]
A news report on 3 November cites an official source at Google for the statement that more than a million of the books digitised had come from publisher partners, with the rest coming from libraries. Of the books digitised from libraries, over a million are public domain, and between 4 and 5 million are works in copyright, most of them described as ‘out of print’.
[http://newsbreaks.infotoday.com/NewsBreaks/The-Google-Book-Search-Settlement-The-Devils-in-the-Details-51429.asp]
Since that point Google has continued to scan and digitise books in the collections of its partner libraries. A proportion of these books are in the public domain, but the great majority are still in copyright.
A large number – how many, it is not presently clear – are by authors who are not US nationals. In this connection it is may be noted that Google is touting greatly increased access to books in foreign languages as one of the anticipated benefits of the Settlement for users of Google Book Search in the US.
[http://googlepublicpolicy.blogspot.com/2009/04/google-book-search-settlement-will.html]
Some of the books that Google has digitised, including one that was edited by me, have never been published or distributed in the United States for reasons to do with licenses and territories. It is not known how many works fall into that category.
[Coming next: How the Google Book Settlement affects European authors and rights-holders]
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