Friskbiskit

Justice Department Weighs in on New Google Settlement

I just have time for a link to this article in the NY Times today:

http://www.nytimes.com/2010/02/05/technology/internet/05publish.html?th&emc=th

Cleaning Day

So the new thing around here, now that hub Steve is juggling chainsaws working the tax season and taking a full course load, is that one morning a week I clean house instead of doing my workout.  Funny how I somehow find time for coffee and blogging on days such as this.

Anyway, I'm cleaning this morning, or will be as soon as I finish this delaying tactic post.

And I'm busy, busy, busy getting ready for Seton Hill's Writing Popular Fiction residency at the end of the week.  I'm teaching a module this time, on magic systems in fantasy novels and let me tell you, trying to get a hold of fantasy novels for research, without having to pay for them, is a bear.  None of the titles my students suggested were at my local library, and it took them two weeks to get them through inter-library loan. And even then, in many cases, the first books in the series were not available at all, so I'm trying to glean what I can from the second and third volumes of trilogies here.  Sheesh!  I have to say, the whole experience makes a pretty good argument for Google's goal of scanning every book in existence.  I'm not saying I'm in favor of the settlement they cooked up, but I do see the need for improving access to books. Of course that could be done lots of ways, and not just by Google.

Google Books Settlement Revised

Here's an article from the New York Times about the terms of the revised Google Settlement.  And here's Publisher's Weekly's report, which includes a handy timeline for what comes next.

The revised agreement is now limited to books registered with the U.S. Copyright Office or published in Australia, Canada, or the U.K. I'm pleased to see that unclaimed funds from orphan works now go to philanthropy and efforts to find authors of orphaned works after ten years, rather than into the Book Rights Registry operating fund after five years. The original payment structure of 63% to rights holders and 37% to Google remains the same.

Not everyone is satisfied with the changes.  The Open Book Alliance, which includes Amazon (open book, ha, that's funny), Microsoft, and Yahoo! had a post on their blog describing the changes as "sleight of hand." The new agreement stops short of empowering the Book Rights Registry to grant Google's competitors licenses to use oprhaned works on the same terms as Google.  Instead it places such decisions under the responsibility of an independent trustee who can grant the licenses with congressional approval. In other words, it provides for potential competition later, but not real competition now.  The Open Book Alliance has also posted a list of requirements for what they want to see in a revised Google settlement.

The best article on the revised settlement that I've read so far is this one from Library Journal. It goes into detail and quotes, among others, our old friend New York Law School professor James Grimmelman.

Google Settlement at the Frankfurt Book Fair

Here's a really amusing article covering a panel at the Frankfurt Book Fair about the Google Books settlement:

http://www.publishersweekly.com/article/CA6702374.html?nid=3327&htid=49099&intref=hottopic_Frankfurt_Book_Fair

"We are not a publisher!"

Tee hee!

The Latest on the Google Books Settlement

Google, the Author's Guild and the Association of American Publishers has until Nov. 9 to revise the settlement to a long-standing class-action copyright infringement suit brought by AG and AAP against the technology giant.  Critics of the settlement fear that the brief time line will be inadequate to address their concerns, which range from giving Google a virtual monopoly on the digital display and sale of orphan books, to short-changing authors financially, to abusing the class-action process.  (Take a wild guess which side I'm on in in this issue.)

Here's a link to the article in the NYT.

If you're new around here and you're interested in more of my ranting about the Google Settlement, you can get your fill here.

Top Copyright Official Assails Google Book Settlement

Just came across this:

Top Copyright Official Assails Google Book Settlement - NYTimes.com.

A few comments:
While David Drummond, chief legal officer for Google, contends, accurately, that authors can withdraw their work from Google's database at any time, he doesn't address the impact on authors of establishing a blanket, non-negotiable rate of payment for online display of books. 

Google is attempting to blunt the opposition of Amazon and B&N by giving them a piece of the action.  Will they go for it?

The article also describes the Book Rights Registry as "administered by authors and publishers."  This is the first I've heard this.  In fact, information about the BRR and how it would operate continues to be extremely vague.  As an author, that is one of my principle concerns with the agreement. It seems to lump authors and publishers together as one entity with united interests, which is far from the case, and, specific details on how BRR would operate, and who would operate it, are extremely lacking.

Google Books Settlement Deadline this Friday

I looked at my calendar and realized that six months have flown by and we are now approaching the extended deadline for authors to opt out of the Google Book Search settlement.  You have until Sept. 4, 2009 to decide whether or not to remain in the class action suit brought by the Author's Guild and the American Association of Publishers. 

If you are the author of a book published prior to Jan. 5, 2009 and you take no action, you will be included in the settlement and will be bound by its terms.  If you wish to file an objection to the settlement you also must do so prior to Sept. 4, 2009.  If you want to remain in the suit and want to receive payment for books Google uses, you must claim them by Jan. 5. 2010.   Here's the link to the the page on Google's official site where you can make your wishes known.

Google Book Search Settlement Notice to Rights-holders - Books & Inserts Registry.

And here's their FAQ.

A recap: In September 2005 the Author's Guild and the American Association of Publishers sued Google for copyright infringement, because Google was scanning and making searchable books, mainly academic texts from libraries. The scanned pages included advertising.  The lawsuit was granted class-action status.  Three years later Google settled with the Author's Guild and the AAP in an agreement worth 125 million dollars.  The agreement establishes a Book Rights Registry to collect proceeds from the display of the books and apportion the funds to the rights holders.

I blogged about all of this last spring.  I think the deal is rotten, largely because there is no oversight of the Book Rights Registry, and no avenue that I can see for authors and their representatives to negotiate their rate of payment, but also because it gives Google a virtual monopoly on the electronic display of out of print books.  That's my opinion.  I urge all authors with books published prior to Jan. 5, 2009 to educate themselves about the settlement and what it means for them.  Remember, just because you don't know about it and/or don't do anything about it does not make your work exempt from the terms of the settlement. (And that may be the part that infuriates me most of all.  It's in direct conflict with the principle that copyright is inherent. But I'm not going to go off on a rant again like I did before. Really.)

Currently, the Justice Department is investigating the settlement.  The Internet Archive has asked Amazon, Microsoft and Yahoo! to join it in urging the Justice Department to oppose the settlement, and apparently they have, citing that it would hamper competition on the marketplace. Attorney and author Scott Gant of Boies Schiller & Flexner is also opposing the settlement, on the grounds that the use of class action in this case represents an abuse of the process and that authors are not fairly compensated in the agreement or adequately notified of it.

The William Morris Agency has recommended its clients opt out of the agreement.  The National Writer's Union and American Society of Journalists and Authors have also objected to it. But the settlement has many defenders as well, including the National Federation of the Blind, the Association of Independent California Colleges, and Sony.

More on the Google Settlement

Good God, you're thinking, is she ever going to let up?  I can't take it anymore.  What happened to the absurdity, porn and pics of hot guys I come here for?

I feel you.  And actually, this is just a brief, brief update with a couple of links.  And here, here's some eye candy for your troubles.

But I've been reading The Fiction Circus and I just can't let it pass unremarked that, among the literary estates represented by DeVore, the lawyer that got us an extension on the deadline to opt out of the Google settlement, was the Phillip K. Dick Trust.  How cool is that?  Here's TFC's awesome post about it.

And, the Fiction Circus guys also conducted a long, long interview with James Grimmelmann, a law professor at the New York Law School who wrote an amicus brief (whatever that is, sounds like friendly underpants)  addressing antitrust concerns regarding the Google settlement.  It's worth your time.

Justice Dept. Gives Google Settlement the Fisheye

What a difference a day makes.  When I posted about the Google settlement last night, things were looking pretty grim.  Now, we have an extension on the deadline to opt out, and the Justice Department is opening an antitrust inquiry into the matter.  Of course, this doesn't mean that they will necessarily block the settlement, but we can hope. 

And maybe do more than hope.  We have time now to take action, and give voice to our interests.  Speaking of which, this line from the NYT report bothers me:

Google, as well as the authors and publishers, have defended the settlement

Wait, what? The authors?  Which ones, cuz that ain't me, bub.  And this, perhaps, is the crux of the problem we face.  Ironically, we, whose stock in trade is communication, seem to have no voice in public discourse.  There are plenty of people running around pretending to speak for authors.  But who actually listens to anything an author has to say, outside of the pages of a book?  (More on that tomorrow.)

Part of the problem is that we are such a diverse group that our interests are not identical.  As has been proven, various organizations established ostensibly to protect author interests may be corrupt, or have an agenda all authors do not agree with, or be inept, or even simply be out of touch with the times.  It seems an open question whether an organization can be devised that empowers authors and gives us a voice in the decisions that affect our trade.

But many of us do live in democracies and as individuals have the right to free speech, so let's use that, at least.  And Twitter.  Don't forget about Twitter.  Tags for the google settlement include #gbs and #optout, btw.

Authors Have One Week to Opt Out/In on Google Settlement

Update:  According to Publisher's Weekly, New York Judge Denny Chin has granted a four month extension of the deadline to opt out or object to the Google Settlement.  This comes as a direct result of the intiative brought forward by Gail Knight Steinbeck and several other concerned parties, including Mike Perry, mentioned at the bottom of this post.  Thank you Mike, Gail, Rt. Hon. Denny Chin, etc.  You guys rock!

The article quotes Author's Guild Prez Paul Aiken thus:  "We’d hoped for a shorter extension of time, since we’re eager to get on to the next phase of the process."  Yeah, I bet you were, Paul.

I know that back in December, I posted that the settlement Google reached with Author's Guild and the Association of American Publishers sounded like it would be of benefit to authors.  I apologize.  I was so wrong.  Having taken a closer look at the terms of the agreement, I think this is a rotten deal, for a number of reasons. 

First of all, the way the deal is structured makes it cost-prohibitive for anyone else to do what Google is doing re scanning and making searchable enormous quantities of books.  It effectively gives Google a monopoly on searching and distributing any book written before January 5, 2009.

In the $110 million dollar settlement, Google is paying the lawyers from the Author's Guild and the Association of American Publishers $30 million for their work in the so-called class action suit.  Another $35 million goes to establish a brand new entity created by the agreement called the Book Rights Registry (BRR).  Every author whose copyrights were found to be infringed by Google's activity up until now gets to divide up the remaining $45 million, which comes to about $60 a title.

The BRR (I feel a chill) is a monopoly in its own right, established with no industry or governmental oversight.  They will collect the money from licensing and advertising, take a percentage and distribute the rest.  Payments to authors are divided between the author and the publisher of the work, regardless of whether or not the publisher previously held electronic rights. (Are you still wondering why publishers aren't yelling about this?) BRR is in effect a mandatory electronic rights agent for all authors, answerable to no one.  There is no mechanism for removing BRR from its position.  This to me is the scariest aspect of a settlement that has no shortage of horrors.

So, Author's Guild and AAP took an issue which many believed to be fair use, conflated it with copyright violation, and now, is selling authors' electronic rights down the river while pocketing a tidy sum for themselves.  Thanks guys, so glad to have you watching my back.  Hey!  What's that knife doing there?

Anybody want to make a bet as to whether BRR hires the suit's law firm, Boni & Zack, when all is said and done?

I digress.

Since this is a class action suit, the terms of the settlement apply to you whether you consent to it or not.  The only way not to be bound by the terms of the agreement is to opt out by May 5, 2009.  That's a week from today, folks.  I urge you to take action on your behalf.  The Greyson Agency (not my agent but my agent forwarded their guide to me) has a downloadable .pdf with guidelines for each of your options here: http://graysonagency.com/blog/uncategorized/guide-to-the-google-settlement-in-pdf/

Briefly, you can opt in, and register your works with Google, in which case you are eligible to collect the monies BRR feels you are due.  You can opt out, which does not mean Google can't or won't scan your work, but your electronic rights will remain intact and you are entitled to sue them for breach of copyright if you so choose.  (And good luck with that, friend.)  You can opt in and object, which requires the services of a lawyer, and, should your objection fail, leaves you still bound by the agreement.  You can do nothing, and still be bound by the terms of the agreement, plus lose your right to sue, plus be ineligible to collect money from BRR. 

With such a plethora of delightful options, how can one choose?

You know, I try to be upbeat around here.  Nobody likes a hater, and I'd rather focus on love.  But on a day like today, when the disregard, the contempt, the hatred for authors that permeates every nook and cranny of the industry is so blatant, so unavoidable, well, I find myself hating too.  In particular, I have a big hate boner for the Author's Guild and the Association of American Publishers, who brokered this shit pile.  Boy, did they pull one over on us, pretending to be championing our interests, when in reality this was nothing more than an opportunistic money grab.  They're collecting a fat fee in exchange for the future economic well-being of every author in North America.  They deserve to be disbanded for this. 

So, if you're as pissed off as I am, here are few things you can do:

SPREAD THE WORD.  The fact that this isn't all over the internet suggests to me that people are not aware of it.  Tell everyone.

Make a decision regarding the future of your electronic rights.  If you have an agent, speak with her about your best option among these very poor choices.  Go to http://www.googlebooksettlement.com/ to exercise your option. 

If you wish your book to be listed and searchable in Google's registry, writer-editor Anita Bartholemew comments in a Publisher's Weekly post that you can still arrange that with them without opting into this settlement.   The way to do this is through their Google Books Partner Program.

Write to your congressperson, the White House, the Register of Copyrights, and local news services regarding this issue.

Check your copyrights and register any that you wish to protect through traditional copyright law:  http://www.copyright.gov

Support small press publisher Mike Perry's initiative to extend the May 5 deadline.  More info here:
http://www.teleread.org/2009/04/25/why-the-google-settlement-is-anti-author-and-why-writers-deserve-four-more-months-for-opt-outs-and-objections/

Don't let the Author's Guild and the Association of American Publishers get away with their chicanery.  Contact them and let them know exactly what you think of the way in which they have represented your interests.

The Authors Guild
31 East 32nd Street, 7th Floor
New York, NY 10016

Phone: (212) 563-5904
Fax: (212) 564-5363

E-mail: [email protected]

Association of American Publishers, Inc.
Washington Office:

50 F Street, NW
4th Floor
Washington, DC 20001
202.347.3375
f: 202.347.3690

New York Office:

71 Fifth Avenue, 2nd floor
New York, NY 10003
Phone: 212-255-0200
Fax: 212-255-7007

And, once again, SPREAD THE WORD.