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.