The Google Book Settlement: 'an end-run around copyright law'

[wolfinthewood]

I am working on a new paper on the Google Book Settlement, to replace the paper I put on the web in August. It is nearly finished. Here is a section of it:

In most English-speaking countries, and perhaps especially in the United States, the GBS has been the subject of serious debate and huge controversy. The coverage of this debate in the UK news media has been for the most part limited and shallow. Only in the UK have all the main authors' organisations – the Society of Authors, the Writers' Guild of Great Britain (WGGB) and the Authors' Licensing and Collecting Society (ALCS) – expressed support for the settlement.

The ALCS and the Society of Authors have represented the settlement as setting up a collective licensing arrangement directly analogous to the arrangements by which, in the UK, the ALCS distributes the income from licenses for photocopying. However, collective licensing was devised as an answer to the problem of collecting and distributing small payments from numerous sources. The Book Rights Registry which will be set up as a result of the settlement if the agreement is accepted as fair by the court is a very different sort of organisation, since it will be established to process payments from only one source: Google Inc.

The US Department of Justice (DoJ), which has been highly critical of the settlement, has specifically rejected the claim that the Book Rights Registry will be just another collecting society, and also that the mechanism of a blanket licence and a collecting society is at all an appropriate answer to the emergence of Google Books. In a statement to the court it has observed that ‘unlike music rightsholders who need the ASCAP/BMI organizations to detect the "fleeting" uses of their compositions on the airwaves, … book authors and publishers have not shown that they lack a practical means to be paid for uses of their works in the absence of collectively negotiated pricing mechanisms’. In other words, it sees no reason why Google should not negotiate with authors and publishers individually, just like anyone else who wants to purchase licences to use in-copyright works.

Likewise, Marybeth Peters, the director of the US Copyright Office, has condemned the settlement agreement, saying, 'no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time'; she has called it 'an end-run around copyright law'.

Here are some more comments on the settlement agreement, this time from writers' organisations in the English-speaking countries:

The proposed settlement is grossly unfair to writers … Compared to the number and seriousness of the violations, the amount being offered by Google to each writer is ridiculously low … Putting the onus on writers to contact Google is also grossly unfair. Google is essentially saying 'we are going to steal your work and sell it under terms we
dictate unless you tell us not to.' A corporation, no matter how powerful, shouldn't be able to profit from your work without first contacting you and obtaining your permission.
       — Larry Goldbetter, president of the National Writers Union (USA)

We have asked the court to remove the "opt out" provisions that turn copyright upside down, or at the very least, to direct the removal of deadlines for opting out of the Book Search. Copyright holders should control their works.
       — Salley Shannon, president of the American Society of Journalists and Authors (USA)

• The "opt-out" mechanism proposed for the settlement contradicts the very foundation of copyright.


• The financial impact on authors could be significant because the settlement would effectively thwart any third-party system from competing with Google and offering alternatives to authors of out-of-print works.

SFWA believes that the proposed Google Book settlement is fundamentally flawed and should be rejected by the court. … We advise all authors … to consult with legal counsel to ensure that they understand the precise meaning of the Google Book settlement, and the impact it may have on their own situation, should the settlement be approved.
       — Science Fiction & Fantasy Writers of America (SFWA)

• Authors should not lose control over their works because they fail to sign up in a registry in another country. This undermines copyright and offends the spirit of the Berne Convention, which prohibits registration as a condition of copyright.


• Settlement of the lawsuits against Google should deal only with Google's past wrongdoing. Google should not be entitled to digitize more works published prior to January 5, 2009 unless the rights holders sign up voluntarily with the Book Rights Registry.

       — Writers’ Union of Canada

The transparency which the public interest requires to be applied to a … monopoly of intellectual property is not apparent in the agreement. The first 17 pages, comprising definitions of words such as 'person', quickly tell a non-legal reader that the language setting out the rights, responsibilities and mechanisms of the agreement is a bewildering shift from ordinary meaning which all-but guarantees that the non-legal reader will give up the unequal task of understanding the rules governing digital book sales and earnings.
       — Australian Society of Authors

Any grant of copyright by a New Zealand author must be subject to New Zealand law and the jurisdiction of the New Zealand courts. …

Questions relating to the tax status of non-US authors are not addressed in the Proposed Settlement.
       — New Zealand Society of Authors