The Google Book Settlement and UK Law: 1

I have continued to study the amendments to the Google Book Settlement agreement. I expect to post some more commentary shortly.

However, I can sum up now: The Google Book Settlement remains a very bad deal for authors.

None of the major objections to the settlement agreement have been addressed in the amendments.

All that the revisions amount to are tweaks to the administration of an instrument that remains elaborately calculated to strip authors of important legal rights and safeguards.

Recently I have been thinking about the GBS in relation to the laws of England. A conversation this week with a friend with a UK law degree has helped to clarify and confirm my intuitions for me.

First, an account of what is at stake and what is taking place:

A licence to use an in-copyright work may only be granted by the author, or her heirs or assigns, or a licensee who holds an appropriate licence under contract. This is true in UK, US and international copyright law.

It is just as true of non-exclusive licences (such as might be granted to an anthology editor, for example), as it is of exclusive ones; I mention this because there have been attempts to pretend that since the licences granted to Google under the GBS agreement are non-exclusive, the same rules somehow don’t apply. They do.

The GBS attempts to overturn this fundamental principle of copyright law by arranging for a small group of 'representative plaintiffs' from the USA, UK, Canada and Australia to consent to an agreement designed to

a) deliver Google Inc a perpetual licence to digitize, display online and sell in the USA any in-copyright works by any author that were published in those countries on or before 5 January 2009

b) retrospectively change the effect of all or most publishing contracts currently in force in those countries in respect of any of these works: the publishers are to be accorded de facto licences to certain rights – digital rights and\or American rights – even when, as is true in a great many cases, they did not acquire a licence to them under the terms of the original contract.

Two private UK citizens, the authors Margaret Drabble and Maureen Duffy, are undertaking to grant all this and more (see below) in a US court on behalf of every author (including every foreign author) who published a work in the UK before 6 January 2009, and every heir to an author's estate, or person to whom an author's rights have been, or will be, assigned. All this on a default opt-in basis, without seeking the authorization or informed, explicit consent of the persons whose rights will be affected: many of whom are in ignorance of the existence of the settlement agreement, or have only a very limited understanding of its terms.

The sole exceptions would be authors and their heirs or assigns who opt out by 28 January 2010, either online (not possible at the moment) or by writing to the settlement administrators (ask for confirmation by letter, and if you don't receive one, write to the court).

UK authors are being encouraged by Google, by the Authors' Licensing and Collecting Society (ALCS) and other cheerleaders for the settlement to believe that if they 'claim' their works on Google's database they will be able to fully control the commercial uses Google makes of them, and can even arrange to have them removed from Google's book corpus. However, this would only be true of works published in volume form: 'books'. Under the terms of the settlement agreement, authors of so-called 'inserts', poems, short stories, essays, etc, published in multi-authored collections, cannot have their works removed from the database and cannot prevent Google from selling them.

Warning to poets and short story writers who have been published in anthologies: Duffy and Drabble are prepared to sign away forever your rights to control the sale of those works, and the sums of money you will see in return will be trivial.

But there's more.

Duffy and Drabble are undertaking to

c) commit all authors who have been published in the UK, those who are to be opted-in without their consent (or even knowledge) as well as those who 'claim' their works, to relinquishing any legal claims, not only against Google Inc and the libraries that supplied it with the books to scan, but also any claims outstanding against other rights-holders: this would apparently include any claims against other authors, editors of anthologies etc, and publishers for copyright infringements committed in the past (including any that have not yet come to light)

d) waive on behalf of all these authors their rights to sue in the courts in the event of any future dispute with Google or their publishers over matters arising out of the settlement agreement; their only option would be arbitration, unless, in a dispute with a publisher, the publisher agrees that the case may be heard in court after all (and pigs might fly) [see Edward Hasbrouck's blog for more on this]

e) waive on behalf of all these authors their moral rights: under UK law, these rights include the right to be identified as the author of the work, and the right to object to any 'derogatory treatment' of the work; in the context of Google's book enterprise, this would cover the excerpting of works in 'page views', and the unauthorized display of advertising beside a work (which could be held to be 'prejudicial to the honour or reputation of the author' under the Copyright, Designs and Patents Act 1988)

f) waive on behalf of all these authors their rights to sue Google over any infringement of their trademarks: this would mean, for example, that Google could without fear of legal action use an author's pen name(s) and/or series titles as AdWords, and offer them to her for sale (it has already started doing this), or sell them to her rivals

Altogether, Duffy and Drabble are taking rather a lot on themselves, as my legally-trained friend remarked when I had explained all this. He wondered what sort of legal advice they had had.

I wonder that too.

It may yet turn out to be possible – the matter is still not certain – to use the machinery of a class settlement lawsuit in a US court to circumvent copyright law and subvert the law of contract.

However, when two UK citizens undertake to license the intellectual property of other UK citizens without their express consent to a foreign corporation in a foreign court, questions of UK law plainly arise.

My friend points out that by taking on this responsibility, Duffy and Drabble are implicitly accepting personal liability.

To put it in plain English: you can't give away what you don't own and are not authorized to give away; and if you do, you are laying yourself open to being sued by the owner(s). In the UK.

Ouch.

I wonder what is the aggregate value of the works that Duffy and Drabble are proposing to license to Google?

Even a single short story may be worth a few thousand pounds, depending on who wrote it. (And remember: the value of the US rights to all short stories that have appeared in anthologies will be virtually destroyed by this agreement.)

Then there are all the novels and other full-length works ...

If an author finds Google selling digital or PoD editions of her books that she has never authorized, what will she do? Opt in to the Google Book Settlement and 'claim' her works? Sue Google? Or bring a case in the UK against the persons who took it upon themselves to 'settle' a case for copyright infringement that she never brought by 'granting' Google indemnity for future violations and a licence to publish and sell her works?

I am not a lawyer, but somehow I can't imagine that the courts in Britain would look kindly on British authors' being 'opted-in by default' by way of a private lawsuit conducted by third parties in a foreign country into a perpetual contract of immense complexity, stuffed with clauses damaging to their interests.

***

I present informed reflection here: not legal advice, for which I am in any case not qualified. If these issues are of material importance to you, I recommend you investigate the amended settlement agreement. If you can possibly afford it, consult a suitably qualified lawyer.

The Google Book Settlement and UK Law: 1

I have continued to study the amendments to the Google Book Settlement agreement. I expect to post some more commentary shortly.

However, I can sum up now: The Google Book Settlement remains a very bad deal for authors.

None of the major objections to the settlement agreement have been addressed in the amendments.

All that the revisions amount to are tweaks to the administration of an instrument that remains elaborately calculated to strip authors of important legal rights and safeguards.

Recently I have been thinking about the GBS in relation to the laws of England. A conversation this week with a friend with a UK law degree has helped to clarify and confirm my intuitions for me.

First, an account of what is at stake and what is taking place:

A licence to use an in-copyright work may only be granted by the author, or her heirs or assigns, or a licensee who holds an appropriate licence under contract. This is true in UK, US and international copyright law.

It is just as true of non-exclusive licences (such as might be granted to an anthology editor, for example), as it is of exclusive ones; I mention this because there have been attempts to pretend that since the licences granted to Google under the GBS agreement are non-exclusive, the same rules somehow don’t apply. They do.

The GBS attempts to overturn this fundamental principle of copyright law by arranging for a small group of 'representative plaintiffs' from the USA, UK, Canada and Australia to consent to an agreement designed to

a) deliver Google Inc a perpetual licence to digitize, display online and sell in the USA any in-copyright works by any author that were published in those countries on or before 5 January 2009

b) retrospectively change the effect of all or most publishing contracts currently in force in those countries in respect of any of these works: the publishers are to be accorded de facto licences to certain rights – digital rights and\or American rights – even when, as is true in a great many cases, they did not acquire a licence to them under the terms of the original contract.

Two private UK citizens, the authors Margaret Drabble and Maureen Duffy, are undertaking to grant all this and more (see below) in a US court on behalf of every author (including every foreign author) who published a work in the UK before 6 January 2009, and every heir to an author's estate, or person to whom an author's rights have been, or will be, assigned. All this on a default opt-in basis, without seeking the authorization or informed, explicit consent of the persons whose rights will be affected: many of whom are in ignorance of the existence of the settlement agreement, or have only a very limited understanding of its terms.

The sole exceptions would be authors and their heirs or assigns who opt out by 28 January 2010, either online (not possible at the moment) or by writing to the settlement administrators (ask for confirmation by letter, and if you don't receive one, write to the court).

UK authors are being encouraged by Google, by the Authors' Licensing and Collecting Society (ALCS) and other cheerleaders for the settlement to believe that if they 'claim' their works on Google's database they will be able to fully control the commercial uses Google makes of them, and can even arrange to have them removed from Google's book corpus. However, this would only be true of works published in volume form: 'books'. Under the terms of the settlement agreement, authors of so-called 'inserts', poems, short stories, essays, etc, published in multi-authored collections, cannot have their works removed from the database and cannot prevent Google from selling them.

Warning to poets and short story writers who have been published in anthologies: Duffy and Drabble are prepared to sign away forever your rights to control the sale of those works, and the sums of money you will see in return will be trivial.

But there's more.

Duffy and Drabble are undertaking to

c) commit all authors who have been published in the UK, those who are to be opted-in without their consent (or even knowledge) as well as those who 'claim' their works, to relinquishing any legal claims, not only against Google Inc and the libraries that supplied it with the books to scan, but also any claims outstanding against other rights-holders: this would apparently include any claims against other authors, editors of anthologies etc, and publishers for copyright infringements committed in the past (including any that have not yet come to light)

d) waive on behalf of all these authors their rights to sue in the courts in the event of any future dispute with Google or their publishers over matters arising out of the settlement agreement; their only option would be arbitration, unless, in a dispute with a publisher, the publisher agrees that the case may be heard in court after all (and pigs might fly) [see Edward Hasbrouck's blog for more on this]

e) waive on behalf of all these authors their moral rights: under UK law, these rights include the right to be identified as the author of the work, and the right to object to any 'derogatory treatment' of the work; in the context of Google's book enterprise, this would cover the excerpting of works in 'page views', and the unauthorized display of advertising beside a work (which could be held to be 'prejudicial to the honour or reputation of the author' under the Copyright, Designs and Patents Act 1988)

f) waive on behalf of all these authors their rights to sue Google over any infringement of their trademarks: this would mean, for example, that Google could without fear of legal action use an author's pen name(s) and/or series titles as AdWords, and offer them to her for sale (it has already started doing this), or sell them to her rivals

Altogether, Duffy and Drabble are taking rather a lot on themselves, as my legally-trained friend remarked when I had explained all this. He wondered what sort of legal advice they had had.

I wonder that too.

It may yet turn out to be possible – the matter is still not certain – to use the machinery of a class settlement lawsuit in a US court to circumvent copyright law and subvert the law of contract.

However, when two UK citizens undertake to license the intellectual property of other UK citizens without their express consent to a foreign corporation in a foreign court, questions of UK law plainly arise.

My friend points out that by taking on this responsibility, Duffy and Drabble are implicitly accepting personal liability.

To put it in plain English: you can't give away what you don't own and are not authorized to give away; and if you do, you are laying yourself open to being sued by the owner(s). In the UK.

Ouch.

I wonder what is the aggregate value of the works that Duffy and Drabble are proposing to license to Google?

Even a single short story may be worth a few thousand pounds, depending on who wrote it. (And remember: the value of the US rights to all short stories that have appeared in anthologies will be virtually destroyed by this agreement.)

Then there are all the novels and other full-length works ...

If an author finds Google selling digital or PoD editions of her books that she has never authorized, what will she do? Opt in to the Google Book Settlement and 'claim' her works? Sue Google? Or bring a case in the UK against the persons who took it upon themselves to 'settle' a case for copyright infringement that she never brought by 'granting' Google indemnity for future violations and a licence to publish and sell her works?

I am not a lawyer, but somehow I can't imagine that the courts in Britain would look kindly on British authors' being 'opted-in by default' by way of a private lawsuit conducted by third parties in a foreign country into a perpetual contract of immense complexity, stuffed with clauses damaging to their interests.

***

I present informed reflection here: not legal advice, for which I am in any case not qualified. If these issues are of material importance to you, I recommend you investigate the amended settlement agreement. If you can possibly afford it, consult a suitably qualified lawyer.