Tuesday, September 01, 2009

Victoria Strauss -- Google Book Search Settlement Deadline Looming

Writers: The deadline for deciding whether to opt out of the Google Book Search Settlement is September 4, 2009. That means you have just four days to decide.

If you want to opt out, you must do so by September 4, or lose your chance forever. Opting out must be done in writing. You may opt out online, or send a written notice by US mail, postmarked on or before September 4 (instructions and address are here).

If you don't opt out, you will automatically be included in the Settlement. You'll then have until January 2010 to log in to the Book Search website, set up an account, and claim your work.

(Note: many of the links below are from the FAQ on the Google Book Search Settlement website.)

The Book Search Settlement covers all works published on or before January 5, 2009 (so if your work was published after that date, or is yet to be published, you aren't affected), and anyone with a US copyright interest (don't assume, if you're not a US writer, that this doesn't mean you--if your book was published or distributed in the USA, you may be included). "Works" means both books and inserts (shorter pieces included in a longer work).

Google defines a book as "a written or printed work" that meets the following conditions:

- 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.


Google defines inserts as:

...forewords, afterwords, prologues, epilogues, poems, quotations, letters; textual excerpts from other Books, periodicals or other works; song lyrics; musical notation; children’s Book illustrations; or tables, charts and graphs that are not pictorial works.

The Settlement also creates the Book Rights Registry, which "represents the interests of Rightsholders in connection with this Settlement with Google as well as potential licensing deals with other entities, subject to Rightsholders’ authorization."

What happens if you choose to remain in the Settlement? You'll be able to "claim" your books and inserts, and receive some compensation for the ones that Google has digitized without permission. You'll also be able to direct Google to remove one or more of your works from the Book Search database, request it not to digitize other works, and control whether and how it displays your digitized works (including whether they're offered by Google--now and in the future--for sale or download). In exchange, you give up the right to sue Google for copyright infringement--though you do retain the right to object to the terms of the Settlement.

What happens if you opt out? You'll lose the right to object to the terms of the Settlement, but retain the right to sue Google for copyright infringement. You can also request that Google not display any work of yours that it has digitized, and/or that it not digitize any further work. Google is currently "voluntarily" honoring these requests, though there's nothing in the Settlement to compel it to do so, or to prevent it from changing its mind.

The Google Book Search Settlement is a sweeping agreement that shifts the ground on copyright, and has far-reaching implications for the future of books. Whether to opt in or out is a complex, difficult decision. Authors should strive to inform themselves as fully as possible (a tour of the links below should help with that), and should not allow themselves to be swayed by the small amount of money they may receive from Google if they remain in the Settlement.

The Authors' Guild, one of the parties to the Settlement, provides an overview of the Settlement's possible benefits. However, resistance to the Settlement has been mounting, both in the USA and overseas, and many organizations and individuals have filed objections or issued statements of opposition, including SFWA, the National Writers' Union, the American Society of Journalists and Authors, and the Open Book Alliance (a coalition of organizations that includes some of Google's biggest rivals). And the US Department of Justice is conducting an antitrust investigation.

As of this date, a surprisingly small number of individuals and groups have opted out or filed objections, but likely this will grow in the coming days. The Public Index is keeping track, with links to the documents. They make for instructive reading.

For the record, I oppose the Settlement (SFWA's opposition statement pretty much sums up my reasons) and don't want my books to be part of it. But I haven't yet made up my mind whether to opt in and direct Google to remove my work from its database, or to opt out and risk that Google might decide to renege on its voluntary promise to exclude opt-outers. For me, opting out is morally preferable, but I fear that it is less real-life practical.

Edited to add: I should have noted that the Settlement has not yet been formally approved by the Court. This will happen (or not) as a result of a Fairness Hearing, which will be held October 7, 2009.

Whether the Settlement stands or not, the opt out decision must be made by September 4.

18 comments:

Anonymous said...

Do we get a choice if we're unpublished, or would that not be necessary?

Deb said...

How can they hold authors to a 9/4 deadline if the hearing doesn't even take place 'til October?

Victoria Strauss said...

Anonymous, the Settlement covers only published work. So if you're unpublished, you aren't affected.

What will happen going forward--i.e., for work published after January 5, 2009--isn't clear. My guess is that Google will continue to digitize, and will continue to require authors and publishers to opt in or out. In future, Google may become a standard part of publishing or self-publishing contracts.

Deb, the deadlines were set by the court. But I can see why Google would want everyone opted in, or out, of the Settlement prior to the Fairness Hearing, so that if the Settlement is approved they can go forward without any further waiting period.

Victoria Strauss said...

Worth reading: an objection to the Settlement filed by lawyer Scott E. Gant.

Patience-please said...

I don't know what to do. I HATE having my book ripped off. I can't afford to seek legal advice.
I don't understand why a copyright isn't a copyright.
But thank you for all of your help with this.

Marissa Doyle said...

I share your views and indecision about whether to opt in or out...but mostly I'm annoyed and hope the Settlement is delayed until this whole thing can be thought through a little more.

A. Shelton said...

I've read the link you provided here in comments, Victoria, and I am sick. It's making me reconsider sending anything out at all until after this issue has been decided on by the court.

I don't know. If Google is given the go-ahead with this, I don't know what I'd do. I don't even know if I'd opt in now if I were published, but "For the reasons explained above, this Proposed Settlement is so flawed that the class
members are truly better off with no settlement at all" makes me feel as though I would have been better off not opting in.

Google is offering a pittance, and every author's work is worth more than that. Much more.

I wish we unpublished authors had more of a say in this, because this will affect us in the future, if Google is allowed to continue with this.

I am just appalled.

John Soares said...

I opted in. I know I wouldn't bother with an individual suit.

Victoria Strauss said...

This article from a New Zealand newspaper illustrates the dilemma the Book Search Settlement poses for authors outside the USA.

Germany has filed a formal objection to the Settlement, and it's opposed by many French publishers. The UK's Society of Authors, on the other hand, says that "in our view it probably makes little sense to opt out."

Victoria Strauss said...

SFWA has joined the Open Book Alliance.

Robin Bayne said...

From SFWA's comments--• "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."
I'm not sure I understand that.

Victoria Strauss said...

Google is entering into partnerships to make the public domain books it has digitized available via a number of companies and re-sellers. Coolerbooks (a UK e-bookstore with its own e-reader, the COOL-ER) is the latest example.

If the Book Settlement is approved, will in-copyright books follow? The Settlement gives Google the right to sell the books it has digitized (not just in e-form, but also via POD). If you opt in to the Settlement and don't exclude your books from Google's database, will you eventually find them for sale at e-tailers all around the Web?

Victoria Strauss said...

Robin Bayne said,

From SFWA's comments--• "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." I'm not sure I understand that.

There are two issues here, as I see it.

The first is that the Settlement automatically grants Google a license to digitize books. To prevent this from happening, you have to opt out, or opt in and direct Google to exclude your books from its database. Problem is, huge numbers of copyright holders don't know about the Settlement, or are so confused by it that they will do nothing. So simply by default, Google will gain an unfettered license to digitize, sell, and make other uses of vast numbers of out of print books.

The second issue is that the question that was at the core of the original lawsuit--whether Google's digitization project was fair use (as it claimed) or copyright violation--was never resolved by a court, since the parties came to a settlement instead. Any other organization that attempted to do something similar, therefore, would be vulnerable to lawsuits on the same grounds. What organization is going to have the cash and clout to risk that? The intent of the Settlement may not be to restrict competition and create a monopoly, but it seems likely that this will be its effect.

In an article from the Guardian that I read this morning, an advocate of the Settlement is quoted:

"The obvious social justice and social utility impact that the book project is going to have ... are getting lost in the discussion," said Professor Lateef Mtima, director of the Institute of Intellectual Property & Social Justice at Howard University, a pioneering black college in Washington.

He suggested it would help "so many segments of our society today who for decades have been left out of the communication exchange, who have been on the wrong side of the digital divide".


I don't disagree. In fact, I think it's a compelling argument. The article continues:

However, critics of the deal said that this does not address their concerns with the settlement - which are not about whether digitising books is useful, but whether the specific terms of the deal will hamper innovation and damage authors.

For me, this is exactly the issue. As alluring as is the prospect of a universal, digital world library, I don't believe that the Settlement, fatally flawed as it is, is the way to establish that.

Michael Pastore said...

Thanks for your article about this issue. I opted out today (the last possible day), hoping that Google will still show snippets from my 14 books. When you opt out you have two choices: tell Google to show nothing from your works; or ask Google to contact you.

Generally I am strongly pro-Google. But in this case, they should have asked first, and scanned later.

Michael Pastore, author
50 Benefits of Ebooks

lili said...

I think Google's actions are phenomenally, mind-bogglingly disgusting. There's not a chance in hell that what they're doing or what they plan to do is legal, but where does a 400-pound gorilla sit when he goes to the movies? Anywhere he wants to.

I was going to opt out because I want nothing to do with this piece of garbage, but my agency is recommending opting in and then telling Google to back the hell off, from inside the room rather than outside. According to them, the only reason to opt out would be if you were planning to sue - and we all know who'd run out of time and money first if I did. And I trust my agency totally. So I've opted in, and I'm going to tell them to back as far off my books as possible.

I still want to kick most of Google management in the nads repeatedly for several hours, but there we go.

Victoria Strauss said...

My agency is advising its clients to opt in too. But I think there's as much chance that Google will renege on its terms for people who opt in, as it will on its current voluntary guarantees to those who opt out. In other words, I think that no matter what you do, there's no assurance that things will stay the way they are.

I chose to opt out for moral reasons--I can't bring myself to be a party to such an exploitive and flawed arrangement, even to the extent of opting in in order to prohibit Google from using my books--and because I fear that litigation on this will be ongoing for a very long time (I don't think the Settlement will be approved at the Fairness Hearing on October 7). If indeed that happens, how will the rights of writers who opt in be affected?

Lili said...

I totally agree, Victoria - I don't think there's any chance that Google will honour the terms for either set of writers if it doesn't feel like it at some point in the future. And the terms are slippery as hell.

For example, it's claiming dibs on non-commercially-available books, and defining 'commercially available' any way it wants to. I'm currently on a big bestseller list, so I think it's fairly obvious by any normal standards that my books are available, but I could tell Google to take my books off display and then discover, next week, that they've defined my books as 'not commercially available' and put them back on display as orphan works.

I hadn't even thought of the ongoing-litigation problem. And here's another twist: what if Google somehow ends up scanning the UK edition of my book? The UK publishers and I could be sued by the US publishers, because that edition shouldn't be distributed in the US. There's going to have to be new language in contracts to cover situations like that. What a mess...

Victoria Strauss said...

This essay by Lewis Hyde for the New York Times provides a cogent discussion of why the Settlement (as originally drafted) will give Google a monopoly on orphan works, and why that's not a good thing.