More Reasons to Beware of the Google Book Settlement

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!