[publishing] The Google Books settlement and your legislators

Anent my post earlier today about the miserable thievery that is the Google Books settlement [ jlake.com | LiveJournal ], asked me via Twitter:

@jay_lake Is this the sort of thing that can be changed by new laws? Is getting our legislators involved a good idea?

My answer is, well, it’s worth a shot, but probably not going to accomplish much. Here’s why.

Two things move legislators. Money, and popular reaction.

The money is all on the Google side here. Overwhelmingly so. I am not implying Google has bought anybody off, merely saying that of the parties involved, only Google has the ability to swing meaningful weight through lobbying and campaign contributions.

Unfortunately, popular reaction is probably also on the Google side. What we’re arguing about here isn’t the indexing of the books per se. At least, I’m not. As someone said on an author’s mailing list, if Google had come to us as authors and asked to do this on an opt-in basis, we’d have been falling all over ourselves to be included. What we’re arguing about here is how copyright licenses are created, compensated and enforced. The Google Books settlement inverts the entire modern history of copyright, moving licensing from something controlled by the author (or other copyright holder) into something which can in effect be homesteaded by any entity large enough to not be concerned with individual lawsuits for copyright violation. Think movie studios, for example.

Most people don’t know or care about that sort of thing. It’s legal neepery of interest only to copyright holders and their publishers. What most people care about (if they care about this at all) is the ready access to a huge index of books, including many orphaned or out of print works. This is world-threatening to authors, agents and publishers, but it’s a net benefit to most voters.

We can’t swing money, and we can’t swing public outrage. What are we left with? The biggest kid on the block playing bully, and all our agents and editors telling us we might as well take what we can get, because this can’t be fought. And even though I support in principle what Google is trying to do here, the methods they’ve used, thanks to the Author’s Guild and the settlement, are bullying, pure and simple, compounded by theft of copyright today and the potential for incalculable future economic damage to copyright holders.

Much as the Thor Power Tool decision had the unintended consequence of destroying publishing backlists for a generation, the Google Books Settlement has the distinct possibility of an unintended consequence of undermining or destroying author control of copyrights, and decimating the value of those copyrights.

And I don’t see how our community can leverage legislators on this one, because we don’t have money or popular appeal on our side. Advantage, the bully that is Google.

Do you agree with my analysis? Or am I mistaken?

3 thoughts on “[publishing] The Google Books settlement and your legislators

  1. Frances Grimble says:

    The original subject of the suit was indexing books so “snippets” could appear in the Google Book Search engine. Many people who have not followed the suit think that is what the Settlement is about.

    However, the Settlement enables Google to _publish_ books, as e-books, as print-on-demand books, and as anthologies Google puts together. This happens one year after the book is declared “not commercially available.” Hardly enough time for an author whose rights have reverted to find a new publisher, possibly update the book, and then for the publisher to print the book. Furthermore, the Settlement enables Google to declare print-on-demand books “not commercially available.” Few publishers will want to reprint a book in direct competition with Google.

    Another problem is, the copyright holders will have to pay to maintain the Book Registry, which will be owned by the Author’s Guild. The amount copyright holders will pay out, is not limited or stated in the Settlement. Nor is any dollar amount of revenues guaranteed to authors. It will take up to 5 years for them even to receive the $60/title award for copyright violation. But meanwhile, they may have to pay the Registry, whose first task is to examine the publishing contracts of every copyright holder who did not opt out of the Settlement. (I opted out in January. The deadline is May 5, 2009 and my lawyer advised sending a letter by certified mail rather than just filling out the online form.)

    The public is in favor of the Settlement because the vast majority seem to think that Google is operating out of some “noble” desire to give all those books away. They don’t care if the copyright holders get paid. But, the public will not benefit from giveaways either, because Google will be charging for these books and that is made clear in the Settlement. Possibly not enough to make much profit for copyright holders, but there will be plenty for Google and the Author’s Guild.

  2. dr_pipe says:

    Not claiming any expertise here, but I’m fairly sure this settlement does not take away the basic rights that come with copyright. If you own copyright of a work, I highly doubt this settlement will prevent you from telling Google not to publish your out-of-print work if you don’t want them to. I can believe that it gives Google the right to publish the work, absent any comment from you. But if you are actively involved with your copyright, paying attention to what happens with your intellectual property, I’m fairly certain you can control what is done with it; you can tell google to not publish; you can tell google to stop publishing. Again, this is my expectation; I could be wrong. But I would have to see some pretty darn convincing proof to change my mind.

    Also, the public is not in favor of the settlement because we think Google is giving us books out of the goodness of their hearts; we are in favor because, as I currently understand it, the settlement leaves authors with the right to control their works if they are paying attention to their copyrights, and makes books available for sale that would otherwise languish in purgatory, not being published, not able to be put out as part of the public domain due to copyright.

    As a final point, it should be noted that the provisions of the settlement allowing for Google to publish are there only as a result of this coalition of publishers and like groups suing Google, and then settling in agreement with this provision. If the suit had never happened, Google would only have the rights we all have: Fair Use. Which, I believe, and I think most people would believe, includes indexing the books for search. If the suit had never been brought, or if the publishers had not agreed to the publishing of out-of-print books in their settlement, then indexing is all Google would have the right to do. Again, assuming I understand this correctly. If someone knows I’m wrong, I’d be happy to hear about it. But by “knows I’m wrong,” I mean, has relevant quotes from the settlement to show that I’m wrong.

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