Friday, August 14, 2009

Victoria Strauss -- SFWA's Statement on the Proposed Google Book Settlement

Earlier this week, the Science Fiction and Fantasy Writers of America issued a statement on the proposed Google Book Settlement, to which it plans to file a formal objection. The statement is reproduced below.

The National Writers Union has also announced that it will oppose the settlement.

I've blogged previously about the settlement, here and here.

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SFWA's Statement on the Proposed Google Book Settlement

The Science Fiction & Fantasy Writers of America, Inc. (SFWA), in conjunction with outside counsel, has reviewed the terms of the proposed settlement between Google, Inc. and the Authors Guild, Inc., and other class action plantiffs. On April 19, 2009, SFWA’s Board of Directors voted to stay in the claimant group in regard to SFWA-owned copyrights so that SFWA has standing to file a formal objection to the proposed settlement with the court. This decision should in no way be seen as an approval of the proposed settlement, nor construed as advice to either our members or writers with potential claims in general. Put simply, in order to file an objection, SFWA must opt-in as a claimant; should we opt-out, we lose our ability to formally object with the court.

Though it is clear that the proposed Google Book settlement is well-intentioned, the problems are myriad and, in SFWA’s opinion, the terms should be reviewed with extreme care by authors, in particular those authors who write fiction. Some of the particular problems we have identified include:
  • The proposed Google Book Settlement potentially creates a monopoly by granting Google excessive power to control the market for out-of-print books that are offered to the general public.

  • 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.

  • The terminology of the Google Book settlement makes no distinction, nor does it provide a mechanism for discovering the difference, between works deemed out-of-print and works in the public domain.

  • The class does not reflect the interested parties, primarily the holders of copyrights in “orphan works” where the rightsholder(s) cannot be identified or found.

  • The Authors Guild and the Association of American Publishers are poor representatives of the class as neither represents the types of work perhaps most significantly affected by the settlement, namely scholarly works.

  • The class representatives do not include any authors of adult trade fiction, an obvious issue for SFWA.

  • The class fails to consider fully licensees of works and fails to account for their interests.

  • By settling, Google never fully addressed and litigated the issue of copyright infringement/fair use, which was at the heart of the 2005 lawsuit brought forth by the Authors Guild and the Association of American Publishers. The settlement further obfuscates the issue of how Google’s scans and publication of the snippets should be treated under U.S. copyright law.

Obviously, this is not an exhaustive list, but merely a sampling of some of the problems SFWA believes are inherent in the proposed settlement. SFWA is not advocating a particular course of action nor providing legal advice for individual authors, who should evaluate the proposed Google Book settlement based on their own situation and with the advice and input of their own legal counsel.

For the record, SFWA believes that the proposed Google Book settlement is fundamentally flawed and should be rejected by the court. With this public statement, we advise all authors and other writing organizations (in particular those who hold copyrights) 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.

For the Board of Directors,

Russell Davis
President
SFWA, Inc.

7 comments:

ALC said...

Does this affect self-published writers as well? Also, does it affect authors published AFTER the date of the lawsuit's filing? I'm not sure I understand WHO, specifically, this will affect.

Victoria Strauss said...

It does appear to affect self-published writers. From the Google Book Settlement website FAQ:

What are "Books" as used in the Settlement and Notice?

For purposes of this Settlement, a "Book" is a written or printed work that meets the following three conditions as of January 5, 2009:

- It was published or distributed to the public or made available for public access under the authorization of the work’s U.S. copyright owner or owners on sheets of paper bound together in hard copy form; and

- It was registered with the U.S. Copyright Office, UNLESS the work is not a "United States work" under the U.S. Copyright Act, in which case such registration is not required; and

- It is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement.

Whether a work is a "United States work" is determined by the U.S. Copyright Act. If you are unsure whether your work is a "United States work" and, therefore, whether you must have registered the work with the U.S. Copyright Office to be covered by the settlement, you may wish to consult Class Counsel.


The settlement covers only books published before January 5, 2009. Books published after that date are NOT covered by the settlement. One of the troubling concerns about the settlement is what exactly this means going forward. I am guessing that the settlement, if approved, will establish the norm for all newly published books--i.e., it will become routine for publishers to negotiate digitization with Google as part of the publication process, and possibly to include provisions for this in publishing contracts.

The settlement officially affects only US copyright holders (see the quoted FAQ section above). But there are implications for authors in other countries (for instance, European works in US libraries have been scanned), and there's growing concern over the settlement in Europe.

ALC said...

Does this mean that (if the settlement goes through) a self-published writer will have the option of dealing with Google? Or, does Google have unlimited dominion? (i.e., they can digitize whatever they like if the writer doesn't outright decline.) Also, what about self-published writers who don't go through the motions of actually "copyrighting" their work (since the work is still protected by the same copyright laws)? Or, one who waits to go through the motions because of budgeting?

J. F. Gonzalez said...

Victoria, thank you so much for this, and for past blog entries on this subject. I have been researching my options on this for the past week now. I would love to be able to opt out to symbolically give Google the finger, but if the settlement is approved, that option may not be good. It angers me that, if this happens, Google (and the US Courts) would effectively rewrite US Copyright law.

As it stands now, if I opt in I will not only have to claim numerous novels, both under my name and pseudonyms, but short story collections and dozens and dozens of "inserts", many which have been reprinted in numerous other volumes. I have friends who have a much longer list of publications than I. As copyright owners of this material, we shouldn't *have* to claim title to our own work! Under current copyright law, its ours -- period!

Victor Heck said...

Hi Victoria,

What about the Berne Convention...is Google circumventing that as well? Thanks.

Victoria Strauss said...

ALC asked,

Does this mean that (if the settlement goes through) a self-published writer will have the option of dealing with Google? Or, does Google have unlimited dominion? (i.e., they can digitize whatever they like if the writer doesn't outright decline.)

Google is already digitizing whatever they like. That's the whole heart of the dispute: they argued that doing so was fair use, while the Authors Guild and the publishers that sued Google argued that it was copyright violation. The settlement, unfortunately, doesn't resolve this issue.

There doesn't seem to be anything that anyone can do about the digitizing. What authors--self-published as well as commercially published--can control is whether and how Google displays and sells their digitized work.

Also, what about self-published writers who don't go through the motions of actually "copyrighting" their work (since the work is still protected by the same copyright laws)?

As I understand it (and I'm by no means an expert), whether a work has been registered with the US Copyright Office (and remember that the US is one of only a few countries that has a formal registration process) makes no difference in the settlement (though if a self-pubbed author wanted to opt out of the settlement in order to preserve his or her right to sue Google for copyright infringment, he or she would have to register before s/he could file a suit).

Victoria Strauss said...

Victor Heck asked,

What about the Berne Convention...is Google circumventing that as well?

In the US and Europe, as well as in many other countries around the world, the Berne Convention is the source for copyright law. So circumventing one is circumventing the other.

Whether Google actually was circumventing copyright law by digitizing books without asking authors' permission was at the heart of the lawsuit brought by the Authors Guild, which resulted in the settlement. Google argued that digitizing was fair use. The AG argued that it wasn't, and that by requiring authors to opt out if they wanted their digitized works removed from Google's database, Google was turning copyright law on its head. (Per Berne and the resulting copyright law of countries that are signatory to Berne, a copyright holder's permission must be sought BEFORE his/her rights are used by a second party, not after.)

The issue of fair use was never resolved by the court, because the parties reached this settlement. I don't have a position on the fair use issue, but to my mind, one of the central ironies of the settlement is that it really didn't change the situation for authors: the default position is STILL that Google can use what it has digitized unless copyright holders tell it no. Authors still must opt out if they don't want Google to use their work, either by directing Google to exclude their works or opting out of the settlement entirely.

In Europe, where publishers are increasingly concerned about the settlement (which on its face affects US copyright holders only, but in fact affects millions of European authors whose works are in US libraries that have participated in the scanning project), Google is being sued by a French publisher that, like the parties in the original US lawsuit, contend that Google is violating copyright. The case comes to trial this fall (unless there's another settlement). So possibly the fair use issue that Google dodged in the US will be settled overseas.