The Google Book Settlement: Latest Statement from the Authors Guild

[wolfinthewood]

My paper on the Google Book Settlement is finally finished, and may be read online, or downloaded.

It begins with a summary of where I have arrived:

The proposed Google Book Settlement represents an attempt to use the machinery of a private settlement in a civil law case to overturn fundamental principles of national and international copyright law in the interests of Google Inc., a wealthy corporation. It seeks to legitimate a massive appropriation of rights in American copyrights from authors worldwide. It aims to bind authors and their heirs and assigns in perpetuity, in many cases without their express agreement, to a non-negotiable contract of near-stupefying complexity containing numerous provisions detrimental to their rights. It intrudes into existing contracts (including contracts signed outside the US), in many cases assigning to the publisher rights that the author has never licensed.

It is my hope that the government of the UK, in conjunction with the EU, will act to uphold the rights of British and European authors and copyright-holders under international law, sustain them in the unhindered enjoyment and exercise of their copyrights, and protect their property in those copyrights from harm and the destruction of value.

Continue reading from here

Or download it:

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Most of what I have said about the settlement over the last few weeks is in the paper somewhere, reorganised, augmented, and in some places corrected.

The latest statement from the Authors Guild

The most recent Google Book Settlement news to hit the headlines on the web concerns the William Morris Endeavour agency, which has advised all its writers to opt out of the settlement. I am grateful to lilithsaintcrow for posting in full the response of the Authors Guild to this piece of news (they want their response spread around, it seems). lilithsaintcrow doesn't want arguments about it on her journal, which I completely understand. I have, however, read it with very great interest.

Not for the first time I wonder, why is the Authors Guild shilling so hard for this deal? It really isn't such a brilliant deal. The 63/37% split in revenues they rave about comes before a hefty chunk is paid out to fund the Book Rights Registry – between 10% and 20% is the estimate mentioned in the settlement documents, and there is nothing to stop it going higher.

Why do the Authors Guild get so visibly anxious when anyone refuses to march along with them into Google's gently smiling jaws? What is the hidden agenda? If the deal is so good, why do they have to plug it so hard?

Now they are offering William Morris clients the chance to undo their opt-outs. What about people who opt in (or, worse, find themselves opted in by default) and discover it is a big mistake: will they help them opt out?

But this is the part of their memo that has really caught my attention:

If you want to allow your book to be searchable in Google’s database, and you want to be fairly compensated for Google’s use of your work, and you want to retain complete control over whether, and how, your book is displayed or sold to users, you should remain in the settlement. [My emphasis.]

So they are saying that people who opt out of the settlement will find that Google will display their books online, and even sell them, regardless of their opting out, and without compensation? That is very very interesting.

All along Google has insisted on the legality of its actions. Many US copyright lawyers seem to think its 'fair use' defence would have stood up in court. But what the Authors Guild is saying here is that they believe that if any writers stand out against the settlement, Google will simply use their work anyway and rob them blind. Come on like a gangster, in fact.

A few weeks ago I would have passed over this. I would have assumed that some publicist at the Authors Guild had got a bit over-excited.

But I have seen this suggested before.

On 20 May the Publishers Association of the UK published a briefing for its members on the Google Book Settlement. It contains the following memorable passage:

If the publisher wants to preserve its right to sue Google and the libraries in the United States, under U.S. copyright law, for copying its Books from U.S. libraries and displaying snippets of the Books in the United States, then the right strategy would be to opt out of the Settlement entirely. In adopting this strategy, however, that publisher should understand that Google can use all of the publisher’s Books, as Google sees fit (which could include scanning and displaying portions of the Book, in snippets or otherwise), unless and until the publisher brings a copyright infringement suit resulting in a victory or in a settlement with Google that provides otherwise.

This passage is in italics in the document. Passages in italics "[denote] specific questions formally put to the Association of American Publishers' lawyers, Debevoise and Plimpton, by the PA and the FEP on behalf of its members, and their verbatim responses". In other words, it is straight from the horse's mouth. Debevoise and Plimpton are the lawyers who have negotiated the settlement with Google on behalf of the AAP.

Despite that, the first time I read this, and the second, and the third, I didn't take it seriously. I didn't see a reason, quite honestly, to suspect Google of an intention to go outside the law, as creatively interpreted by their lawyers. I thought it was an attempt to put the frighteners on UK publishers. But now I hear the same tune coming from the Authors Guild.

And it reminds me of something else I've read, more recently, which again I dismissed at the time. A US agent called Chip MacGregor said on his blog the other day:

In case you're not aware, Google was getting ready to scan millions of copyrighted books and make them available to readers -- without offering any compensation to authors (or publishers, for that matter). Think about that for a minute... A vast power grab for content, without any consideration for the creators or the owners of all that intellectual property.

What I hear three times, from different quarters, well-informed quarters, and spoken in all seriousness – well, it makes me think.

And put this together with the unmistakable whiffs of anxiety that are coming off the Authors Guild, and even the AAP: well.

Back in June Allan Adler, vice president of legal affairs for the Association of American Publishers, had this to say about the court-ordered delay in the opt out date and final hearing: "The downside is that it gives people who are opposed to this more time to rabble-rouse."

When I read this originally, I was filled with angry scorn. If you think what you are doing will bear hard scrutiny – as it must – then you don't use contemptuous words like "rabble-rouse": contemptuous both of the critics of the settlement and the writers and publishers in the US and world-wide (the "rabble") who the AAP is afraid may turn against it.

Whenever I have felt tired of this project – which is often; those twisty little clauses are hard going – I have thought of Mr Adler and this has stiffened my resolve. You get a good adrenalin rush from anger.

But today I began to feel sorry for him. I began to suspect that behind that contemptuous way of speaking there is actual fear.

Note that the Google Book Settlement has a secret appendix. It deals with the right of either side, Google and the AAP/Authors Guild, to terminate the agreement 'if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met'. Those conditions are being kept secret. However, Irvin Muchnick, the lead respondent in the landmark case Reed Elsevier v. Muchnick, thinks he may be able to guess what is in the secret clause. He thinks that if enough authors opt out, the secret clause could trigger a termination of the agreement.

And what would happen then?

If the Authors Guild and the AAP really fear that Google is capable of behaving like the Mafia of the publishing world and going outside the law to publish complete works in copyright online without a licence, are they responding in a sensible way? Not on my reckoning. I have been studying the robbers and robber barons, gangsters, fences and con men of history for thirty-five years now. I guarantee it: if you try to strike a legal deal with a robber baron, you will find the law used against you, ruthlessly, while he will resist every attempt to bind him by it to the furthest extent that he can. To look at it from another point of view: if you profoundly mistrust someone, and believe them capable of serious law-breaking, it is not a good idea to enter into a partnership with them.

This is all very murky, but one thing is clear: Google is indeed prepared to publish works in copyright online without a licence. That is exactly what is being proposed under the settlement agreement. The differences between the 'vast power grab for content' feared by Mr MacGregor and what is being proposed under the settlement agreement are two: 1) the device of the class action settlement is intended to push the envelope of law far enough to keep Google's actions within it and 2) registered authors and publishers (such as the members of the Authors Guild and the AAP) will be permitted to reserve control over their works. They won't receive much money; at least, I don't reckon most of them will; but they do get to veto, if they wish, having their own books displayed or sold online by Google. Apart from that, what's projected to happen will be – 'a vast power grab for content'.