[publishing] The banal evil of the Google copyright settlement

Google’s motto famously is “Don’t be evil.” Yet the Google Book Settlement is nothing but evil, an assault on copyright so profound even the Mouse lawyers at Disney never thought to try such a broad rights grab.

In the simplest terms, the Authors Guild sued Google over their Google Book Search service, claiming copyright violation. Google has settled for an amount ranging between $60 and $300 per work. By comparison, statutory damages for willful infringement of copyright range up to $150,000 per work.

Now, as it happens, I’d be pleased to have my work inside the Google Books environment. I’m a big believer in electronic distribution and alternative publishing models, and I’m willing to tolerate the miniscule financial impact in return for the wider availability.

The problem isn’t the fact of Google Books, or the level of the settlement. The problem is the conditions of the settlement.

I as the copyright holder am required to either opt-in to the settlement, and receive my payment, or opt-out of the settlement, and preserve my right to separately seek redress. My opt-in/opt-out claim must be postmarked by May 5, 2009, or I lose the ability to defend my copyright.

In other words, Google has asserted a license to my copyright without my prior consent, and further asserted that claim stands unless I proactively state otherwise.

This is theft.

This is no different from me deciding I can come to your house, use your lawnmower, borrow your car and cook on your grill, and then telling you that unless you tell me in writing by a certain date that I cannot use your property, my right to use your property stands.

My copyright is my property as surely as your car or computer are your property. I cannot assert use without your permission.

And the real problem here isn’t Google’s theft. They’ve agreed to compensate for it, and provided a mechanism.

The real problem, the evil here, is the notion now being put into practice that a copyright license can be asserted by a third party in the absence of the copyright holder specifically forbidding it.

All through modern copyright history until now, a licensor seeking a subright was required to negotiate with the copyright holder before exploiting that license. No differently from a tenant seeking to rent a property is required to negotiate with the landlord before they move in.

As of now, I no longer control the subrights to my copyright. Under the terms that Google and the Authors Guild have set up, anyone who wants to make a commercial use of them can do so. It’s up to me to notice, to be aware, and to take steps to defend my copyright. If I don’t, well, too bad for me.

And if you don’t think Hollywood lawyers aren’t already all over this, you’re dreadfully naive.

This has the potential to radically change publishing in ways which are very unfriendly to content creators and copyright holders. Google has done an evil thing to copyright holders, something we may well all come to regret bitterly in the years to come.

Just to make matters worse, the position which seems to be emerging within the publishing industry is, “take the settlement and move on, Google’s too big to fight, and at least you’re getting paid.”

That’s bullshit. That’s like giving away the entire store because the guy stealing the first few candybars is too big to fight. I don’t know why every author in the country isn’t suing Google for statutory damages, right know.

Actually, I do. They’re one of the richest companies in the world. If I brought a suit against them, they would just lawyer me to death or bankruptcy. Google gets to change copyright law for all of us, just because they’re too big to fight.

That’s evil.

Larry and Sergey, if you’re reading this, ask yourself if this is what you meant Google to be? And Eric Schmidt, you as well.

Google (in which I am a stockholder) has gone from being one of my most respected companies to just another Enron, another AIG, another Halliburton.

Corporate evil which is too big to fight.

Thanks, Google, for nothing.

24 thoughts on “[publishing] The banal evil of the Google copyright settlement

  1. Sue Lange says:

    Thanks for the heads up on this. It seems more and more content is expected to be given away for free anyway. This is just one more nail in the coffin of the dream of making a living as a writer.

  2. Mari Adkins says:

    “”In other words, Google has asserted a license to my copyright without my prior consent, and further asserted that claim stands unless I proactively state otherwise.””

    OMG!!!

  3. tetar says:

    What used to be tacit must now become explicit, as major league sports do it. Copyright notice must now contain some variation of the phrases “no part of this work can legally be used by any third party without the express, written consent of the copyright holder”.

    As of right now, we must also begin howling, and boycotting, and yes suing to maintain our rights and to protect our intellectual property. Where is PEN or SFWA or HWA or any other writer’s group?

    Oh, and pay strict attention to which publishers defend the writers and which feed us to the wolves. Keep a list in public and lengthen it as needed so we’ll all know who not to do business with.

    There are grass roots ways to fight this, and maybe it’s Jack the Giant Killer versus the Elder Gods of Greed but we can figure out ways to deal with this. We must, or just give up writing or any other creativity as any kind of viable commercial activity.

  4. tetar says:

    We’ll have to figure out ways to fight this. It’s nothing new, really, breath-taking and world-changing as it is.

    I’m thinking of Charles Dickens, back in the 1840s.

    America didn’t recognize Britain’s copyright, so his books were all pirated here, and sold millions without a dime going to him.

    Seems we’re back to robber barons.

  5. ferrouswheel says:

    “This is no different from me deciding I can come to your house, use your lawnmower, borrow your car and cook on your grill, and then telling you that unless you tell me in writing by a certain date that I cannot use your property, my right to use your property stands.”

    Physical goods are different, plus… a better analogy would be if you came into my house and then started renting it out to others, or started a lawn mowing service with my mower.

    Of course, I wouldn’t care, because I could simply clone both the house and mower and then we’d both have our own. It’d just be rude to do it without asking first.

  6. Helen Martin says:

    I can see people trying to extend this beyond copyright, but having (as a teacher-librarian) spent years drumming into people’s heads that they must respect copyright for the sake of the authors I am stunned at the Authors Guild agreeing to this. They have agreed on behalf of people who are not members of their Guild and may not even have heard of them. I can see movie and television executives all over rubbing their hands in delight at the material now available to them for mere pennies. And that’s if an author signs on. I am disgusted at this barefaced robbery.

  7. Moz says:

    Actually the house analogy stands up very well. If you don’t notice people living in your house and there’s no way for people to contact you to tell you that, you’re likely to find squatters moving in. Even in the US you have no right to retroactively decide to charge them rent, just the right to reach a settlement with them or lay a complaint with the p*lice.

    The problem with mickey mouse copyright laws is that there is no requirement that the copyright holder be identifiable, let alone contactable. So abandoned copyright kills the work. With houses abandonment eventually leads to compulsory acquisition (usually by the local govt because of non-payment of taxes). I would prefer that over the current stupidity.

  8. mundens says:

    I’d point out that the thing you’re complaining about applies only to the works of authors who are part of the USA Author’s Guild.

    If you don’t like it, you should be complaining to your representatives, the USA Author’s Guild, not to Google. The simplest way to avoid being bound by the agreement is to leave the Author’s Guild.

    Google _cannot_ change copyright law, either in the USA or worldwide, this is a single agreement between one group of authors and Google, it does not affect _anyone_ else’s rights to sue Google for copyright breach.

    1. Jay says:

      Actually, no, this applies to all US copyright holders, whether or not they are associated with the Authors Guild. (Of which I am not a member.)

  9. an observer says:

    So what’s the problem? Opt-out and your rights are preserved. Yes, its annoying to have to assert your rights in order to protect them but hasn’t this always been the case? Copyrights have always been something that rights holders had to be proactive in asserting or else they got lost. And real property rights aren’t exactly analagous to intellectual property rights as courts traditionally saw a threat to someone’s homestead as a more fundamental threat to that person’s well-being than threats against other kinds of property rights.

  10. Jay, thanks for this illuminating article.

    It would be most helpful if you (or one of your readers) could supply an address at Google where I can send paper mail opting out of this theft of my property.

    Thanks, Jerry

  11. I work for a company that competes with Google on several fronts, though not this one, so I’m not into defending them; but practically speaking, the Authors Guild is the one who folded here.

    I think the rest that follows is Google being ham-handed and the limitations of their software. Thus I don’t think that Google is of evil intent, nor do I argue against the harm their actions have caused, evil or not.

    Consider: it took years for Google to get around to the idea of blocking people from their search engine who scrape your blog’s RSS feed and repost its content without attribution, which violates copyright sites AND creative-commons sites. And even now the process to do so is draconic, though that’s an improvement from nigh-impossible.

    I actually don’t know if Google can wrap its mind/software around the idea of owned but non-private content.

  12. Loree Lough says:

    Whoa, powerful stuff, m’friend. And high time someone put words to the ‘I can’t quite put my finger on why, but this whole mess reeks’ that’s been niggling me from the get-go on this!

    I have more than 70 books on the shelves, and most are available through Google in some fashion or form. Poor me. I mean really. I have to manually input every title and googles of information about each to get back rights to what’s already mine. Time consuming, to say the least. And as somebody who pays the bills with said books, I can ill afford such an expenditure.

    Who’da thunk when Google emerged on the marketplace with its ‘clean and shiny’ promises, we’d one day crouch in fear at their blatant bullying tactics. Shameful, just plain shameful.

    And shame on Authors Guild for not flexing their ‘we vow to protect you!’ muscles. No surprise here: I didn’t renew my membership.

    Once again it’s the hard-working writer who’s left holding the stinking end of the stick: We do the work that makes everybody else rich, and here’s our ‘take away’.

    I’d wish ’em all nightmares of the scariest kind, but without consciences? They’ll sleep just fine…while we sit up nights, pecking titles and ISBNs and publisher info into their blasted form.

    Arrggggh

  13. Sengei Tawn says:

    What is to stop Google from claiming all those pretty photos on Flickr next?

  14. markdf says:

    I don’t understand the rules of class action suits, but what I am baffled by is this: how did the Author’s Guild right to litigate a copyright infringement class action suit turn into the Author’s Guild right to be the defacto licensing agent for all US copyright holders? I just can’t wrap my mind around the idea that the courts either implicitly or explicitly granted them this authority. They didn’t “settle” the infringement–they licensed a deal. Google effectively bribed them to drop the lawsuit.

  15. Frances Grimble says:

    I firmly agree that Google’s actions are theft. The house is by no means “abandoned.” Google has scanned an enormous number of books by living copyright holders who need the income from those books. Tedious as it is, every copyright holder needs to read those 300+ pages of Settlement or have their lawyer do it. Because, if you opt in/do not opt out, some of the terms are whoppers.

    Just for example, Google can discount your book to however low a price they set, and pay you according to a percentage of the discounted price. If you do not want to lose copyright control of your book, you have to regularly pay an undisclosed amount to support the Settlement Registry/database. As no dollar income is guaranteed for your books, you could end up paying the Registry more than you make. Google can freely publish and distribute your book once it is declared out of print for only one year–a declaration made by Google, not by the author or publisher. Print-on-demand books can be declared “out of print” by undisclosed criteria.

    I believe that Google’s goal is to dominate the publishing industry in one fell swoop. Although Google “allows” you to sell your book elsewhere even if they are also doing it, I think your chances of making money by selling it elsewhere could become very small.

    I opted out of the Settlement by having my lawyer write a letter, which I sent by certified mail. I also filled out Google’s online form. I have tried repeatedly to find out whether my books were scanned. However, Google will not reveal this information to anyone who has opted out of the Settlement.

  16. I’m with you on this and have written two longish posts on my “Ask the Editor” blog saying much the same and more. Here’s a brief quote from one of the posts:
    http://editorialconsultant.wordpress.com/2009/04/08/google-settlement-is-it-a-bum-deal-part-1/

    “The statutory minimum penalty for infringement is $750. That penalty can go up to $150,000 if a court finds that the infringement is willful.

    “Do you believe that a court would find that Google willfully infringed the copyrights of all the books it’s scanned without permission?

    “And, if you do, do you believe that you should settle with Google for just $60 and, in effect, sign a contract of 100-some-odd pages about what Google can do with your work in the future and what your (now limited) rights would be?

    “Only you can decide what’s right for you. But, here’s the thing. Google wants its scanning operation to be an ongoing venture. So, there really isn’t any need to just let this happen if your head is spinning just trying to absorb all this. You can say no to Google and not lose anything except that 60 bucks in settlement money (assuming Google’s already scanned your book — if it hasn’t, you get nothing).”

    – Anita Bartholomew

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