Friday, September 04, 2009

Victoria Strauss -- Google Book Search Settlement: Opting Out

This morning, I opted out of the Google Book Search Settlement.

For several months, I've had no question that I did NOT want my books included in Google's database. It's not the display of bibliographic information, or even snippets, that I object to--it's the possible uses the settlement empowers Google to make of my work down the road (including selling my books in electronic and POD form). If those uses were limited and clearly defined, I might not have a problem--but they aren't, and I just can't see allowing such a sweeping license to my work, where the implications of granting that license are so unclear.

My only question was whether my desire not to participate in the Settlement would be best accomplished by opting out--in which case Google would "voluntarily" honor my request not to digitize or display my books, but not be barred from changing its mind at some point in the future; the advantage is that I would retain my right to sue Google for infringement--or by opting in and directing Google to remove my books from its database, in which case I would waive forever my right to legal action against Google for any use of my work. Either option presents the risk that Google might at some future point renege, and I might find my work used anyway.

Two things convinced me that opting out was not only the best, but also the most morally acceptable, decision. The first was reading Scott E. Gant's objection to the Settlement, which provides a blistering analysis of the Settlement's raid upon the very ground of copyright, and also of the inadequacy of Google's efforts to notify copyright holders. It convinced me that I couldn't accept the Settlement, even to the degree of opting in solely to prevent Google from using my work.

The second was my conviction that the Settlement will not be approved at the Fairness Hearing on October 7. The flaws are just too glaring, the objections are just too persuasive--and then there's the Dept. of Justice's antitrust investigation. There could be years of litigation ahead. For writers who've opted into the Settlement--or who've done nothing and have been opted in by default--what will the rights implications be? I don't want to be a party to that either.

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.

If you decide you want to opt out, there's still time--you have till the end of today. See my previous post on opting out for links and information.

15 comments:

BuffySquirrel said...

I think if Google had restricted itself to making out of copyright works available online, everything would have been fine....

Jane Smith said...

I think you made the right decision, Victoria. It doesn't look good either way, but at least you have some chance of control this way.

I'm just horrified and amazed that Google thinks it's OK to steamroller its way through all sorts of copyrights in this way.

Christy Pinheiro, EA ABA said...

I signed up for the settlement. I want the money. $400 bucks sounds pretty good to me for books that are out of print anyway-- and on taxation-- my books are obsolete in exactly 365 days.

I guess it works better for some of us and not for others.

G said...

I opted out as well.

I may have only one book that qualifies per the settlement guidelines, but I would like to be able to control how my book (no matter how good or bad it may be)is used.

Victoria Strauss said...

Wow. I didn't realize that Denny Chin, the judge who will preside over the Oct. 7 Fairness Hearing, is the same judge who sentenced Bernard Madoff to 150 years.

Mike Brendan said...

As far as books go, I haven't any published yet... Would it have still been feasible to "opt out?"

tamarasheehan said...

I opted out too, mostly because people I follow and respect did. It's a bad reason, I know, but I'm not going to lie; I didn't really understand what the payment covered, nor was I able to get a lawyer and advice.

Thanks for providing the links and the commentary you did. It helped a lot. I feel like I've made the best choice I could, given my time and resources. And I'm pretty sure I'm not the only small-time writer who was scrambling at deadline.

Kendall said...

Thanks to the link to Gant's filing; wow, that was great reading. (Okay, I skimmed some bits and didn't read all the footnotes....) The proposed so-called "settlement" sounds appalling in the extreme.

Karen Packard Rhodes said...
This comment has been removed by the author.
Karen Packard Rhodes said...

I have one book in print which has been in print since 1997, and another coming out later this year. I do not think $400 is adequate payment to allow Google to do whatever the ___ it wants with my work, thank you. I am going to opt out, for exactly the reasons you did: to protect my right possibly to sue later down the road if Google is so arrogant as to go back on its word.

I agree with BuffySquirrel that if Google "had restricted itself" to publishing only public domain works, that would have presented few if any problems. That alone would have been a tremendous contribution to scholarship. But they had to go for the whole enchilada and fly in the face of what copyright is all about.

Victoria Strauss said...

Mike Brendan said,

As far as books go, I haven't any published yet... Would it have still been feasible to "opt out?"

No. The Settlement covers only books published on or before January 5,2009.

One of the problems with the settlement is that it's not clear what will happen after that date. I think that Google simply plans to go on doing what it's doing, and if the Settlement stands (which I'm certain it won't, at least not without substantial changes), dealing with Google will become a routine part of the rights-granting process.

deola said...

lovely blog

neilmarr said...

If I were a carpenter, I would opt out of any scheme that recognised no difference between a lump of driftwood and an intricately carved dining room suite. How dare anyone suggest our work should not be justly rewarded on the grounds that it is useful? Neil Marr

Firefairy said...

Victoria- your comment above includes a phrase that I find mildly horrifying, at least as I interpret it: "rights-granting process". Please tell me that you are referring to the process of granting copyright permissions to someone other than the author (which is inherently necessary if you want something published), and NOT to the "granting" of copyright in the first place? The second a sentence leaves your pen (or keyboard), it is copyrighted to you- the copyright is not "granted" by some third party, and I think that the general migration of that concept out of most people's awareness contributes greatly to situations like Google deciding that it can copy everything it wants without asking...

Victoria Strauss said...

Firefairy said,

Victoria- your comment above includes a phrase that I find mildly horrifying, at least as I interpret it: "rights-granting process". Please tell me that you are referring to the process of granting copyright permissions to someone other than the author (which is inherently necessary if you want something published), and NOT to the "granting" of copyright in the first place?

As you pointed out, copyright is not "granted" (unless, perhaps, you surrender or "grant" it to another party). The fact that copyright is automatic on creation, however, allows creators to grant to others the bundle of rights that copyright ensures that creators possess. So you're correct that I was referring to the process of granting rights--not copyright--to others. (That's why I used the wording I did--if I had meant "copyright," I would have said so.)

I think you're also correct that many people don't grasp the distinction between rights and copyright (I wish I had a dollar for every small press contract I've read where rights and copyright were hopelessly confused). However, I don't think that had anything to do with Google's actions. Its original argument for digitizing without permission was that to do so was fair use--something that's allowed by copyright law. Whether it actually was fair use or not was never tested by the courts, since Google and the Authors' Guild settled. Possibly the French publishers' lawsuit against Google, which is now being tried, will clarify the issue.