I wish I felt optimistic about the future of the book, or of independent publishing as a viable business option, but I don't. J.L.
In April of this year, I wrote about a landmark lawsuit against Google's Library Project by the Author's Guild and five large publishing houses, and a proposed settlement that would be devastating to most self-published authors and small independent publishers. See Google Taking Over the Publishing World? The amended settlement has just received preliminary approval by the Court, and it is time for an update.
The good news is that Google did not get everything it originally wanted, and had to modify its original settlement proposal to accommodate the anti-trust concerns of the US Justice Department. The bad news is that Google's inexhaustible army of lawyers continued to seek an end-run around copyright law, and were largely successful in doing do. The amended settlement is not much better than the original, and barring some unforeseen 11th hour miracle, will become the law.
The US Justice Department Intervenes
As reported in my last post, the original settlement was scheduled for a Fairness Hearing last June. By the end of April, however, US District Judge Denny Chin – charged with the authority to approve or deny the settlement – granted a four-month extension to authors and publishers wishing to opt out of the agreement, and began investigating its anti-trust implications. An additional concern was the rights of foreign authors and publishers, whose work would be governed by the settlement, in possible violation of international law.
The entire text of the US Justice Department’s Statement of Interest in the case – filed September 18, 2009 – can be read here.
It is worth noting that the primary objection to Google's plan that persuaded Judge Chin to delay its acceptance was not that the rights of thousands, if not hundreds of thousands of US copyright holders would be violated by the agreement, but that the plan would make Google the key player in a library cartel that could illegally rig the price of ebooks, thus effectively creating a monopoly. As the Justice Department stated in its press release to announce the filing of its Statement of Interest:
Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.
The Open Book Alliance and the Larger Feeding Frenzy
The loudest protests to the original settlement came not from authors and small publishers, or even large old school publishers, but the Open Book Alliance, an association of Google's potential competitors in the shark-infested waters of distribution – including other behemoths like Microsoft, Yahoo, Amazon, and a number of large libraries.
According to the mission statement of Open Book Alliance:
The mass digitization of books promises to bring tremendous value to consumers, libraries, scholars, and students. The Open Book Alliance will work to advance and protect this promise. And by protecting it, we will assert that any mass book digitization and publishing effort be open and competitive. The process of achieving this promise must be undertaken in the open, grounded in sound public policy and mindful of the need to promote long-term benefits for consumers rather than isolated commercial interests.
The main objection of this group, in other words, appears to be not that the authors and their publishers would be last in line to benefit from their work, but that those who now take the largest cut of profit for books they did not produce – the large parasitic online distributors – would be cut out of the new feeding frenzy. Mass digitization is assumed to be a given, whether those who create the work being digitized benefit or not, and the only question being debated is who will be allowed to rip off authors and small publishers in the future.
The Amicus Brief filed by the Open Book Alliance can be read here.
To its credit, the US Justice Department did raise concerns about the rights of authors and publishers, which were of marginal concern to the Open Book Alliance, and Google's potential competitors. But these concerns were somehow swept back under the table when Google Book Settlement (GBS) 2.0 was drafted, and ignored by the Court in granting preliminary approval.
Fair Use Publishing Objections to GBS 2.0
In particular, for the agreement to be fair to authors and publishers, according to Fair Use Publishing guidelines:
1. Copyright holders should be able to retain their rights, among them the right to determine the use of their works that have been scanned by Google. GBS 2.0 still forces rightsholders who have not opted-out of the agreement to grant Google a very broad license to use copyrighted works in order to improve their service to libraries, with minimal compensation, forcing those rights-holders to sue Google in federal court to have their copyrights respected.
2. Researchers using the system should compensate copyright holders for any commercial use of their material. GBS 2.0 does nothing to prevent researchers from commercializing the results of their research in the book corpus that will be hosted by library clients of Google, and does not require users of the system to compensate original copyright holders for this commercial use of their work.
3. All authors and publishers should be treated equally by the settlement. GBS 2.0 excludes academic authors, non-Author’s Guild authors, and many foreign language authors from the negotiations, even though such sub-classes would be legally bound by the agreement.
4. Authors should not have to opt-out of the settlement to have their copyrights respected. The opt-out nature of this settlement has not changed under GBS 2.0.
5. At the very least, all authors and publishers should be adequately informed about the settlement and given ample opportunity to opt-out. GBS 2.0 does not correct the deficiencies of Google's original notice program.
6. Orphaned works – those whose copyright holders cannot be immediately identified or located – should be protected from those who would simply appropriate them for profit. Existing copyright law protects these orphan works. GBS 2.0 continues to grant Google broad and essentially exclusive access to them.
According to Larry Goldbetter, President of the National Writers Union:
The proposed revised settlement of the Google Books copyright infringement lawsuit fails to address the concerns of several writers' organizations and many American writers, and allows Google to get away with violating writers' constitutionally protected rights. While a new proposal might appear to answer some objections, it still offers American writers a pittance for their already-scanned books, still requires writers to 'opt-out' of the Google Books program, and still interferes with author-publisher contractual relationships.
Foreign Challenges to the Google Settlement
Ostensibly, GBS 2.0 now excludes foreign works not published in the US, Canada, the United Kingdom, or Australia, but there is nothing in the agreement or beyond it to prevent Google from continuing to scan foreign published books into their database or making them available to library patrons, again with no compensation to original authors or rights-holders.
French and Chinese publishers have all filed their own lawsuits against Google.
Best-selling Chinese romance novelist, Mian Mian, has filed her own lawsuit against Google on November 6, "demanding that Google delete her work from its Book Search results, publicly apologize to her and compensate her 60,000 yen ($8,800) for economic losses and mental anguish."
Into a Culture of Intellectual Bottom-Feeders
Meanwhile, librarians and educators seem to bemoan the fact that the absence of foreign works in Google's system would limit the access of students and researchers to the full body of work on a given subject. As outrageous as Google's rights grab is, there seems to a more pervasive attitude afoot these days that anything online ought to be up for grabs to anyone who wants it, never mind who actually created it in the first place. If it’s out there, it ought to be free. This argument was summed up by Kevin Werbach, professor at the Wharton School and noted tech policy maven, after the original lawsuit was filed:
On some level, copying a Web page to facilitate searching isn't all that different from copying a book to facilitate searching. And copying an RSS feed to put content onto another site isn't so different either. Unravel the notion that some content sharing benefits everyone, and therefore should be acceptable despite the nominal boundaries of intellectual property, and the Internet economy, especially the Web 2.0 economy, comes crashing down. . . . Years from now, will we look back at this as the period when the Internet came apart at the seams?
It is true, the Internet is a radically different media than print, and the line between print and electronic versions of content has become increasingly blurred. In the Web 2.0 economy, many give away their content through RSS feeds, free downloadable ebooks, Amazon search Inside this Book feature and other venues through which information gets propagated virally. The hope in this brave new world is that free content will generate enough traffic to attract advertisers, and/or customers interested in valued-added services. This is fine, as long as the one generating content is choosing to use the Internet in this way, and I would argue – although I may be an old-fashioned minority of one – as long as one is actually generating content.
Many are not, and some of those who are, and get eaten by a shark, wind up going to the dark side. As one person, who commented on Werbach's take, put it:
Ok. I finally can write down how I feel about this copyright junk!!! Some man out in California or some place stole my family history. . . He is not part of our family, but he put his copyright on my sister’s work. . . We were terribly upset at the time, but he got away with it. . . . If that’s the way it is, then this is the way I am . . . I will snag, borrow, sneak, steal, whatever word you want to use. . . if it’s on the Internet, then this is how everyone should look at it. . . We pay anyplace (sic) from $10.00 up per month to use the Internet. . . . ITS (Content on the Internet is) FREE!!!!!!
The problem with the Internet, and perhaps specifically with Web 2.0, as I see it, is that it creates a fertile feeding ground for intellectual parasites – those who have no content of their own, but hope to profit off the content of others. If you can suck enough content from others through RSS feeds, outright plagiarism, or wholesale theft, you can create a viable Web presence without actually contributing anything of your own. Am I alone in thinking something must be wrong with this picture?
The End of Intellectual Property Ownership
If the intellectual environment created by the Web is attractive to a culture of bottom-feeders, then it also attracts hungry sharks at the top of the food chain – like Google, Amazon, Microsoft, Yahoo, and other would be players in the age of mass digitization – who simply assume that all content should be theirs for the taking.
Unless a would-be author in this world wants to become a virtual work-for-hire flunkie for one of these giant parasites, getting paid nothing or next-to-nothing for the prodigious amount of work it takes to produce a truly original work, there is not much opportunity or incentive to go to the trouble. The same is true for small independent publishers, who increasingly must depend upon distribution channels dominated by a few parasitic players.
It was once a cliche that the Internet would level the playing field for anyone with the passion to write, something interesting to say, and the determination to get their work out into the world. In the literary marketplace dominated by Google and its Library Project, this will no longer be true.
I wish I felt optimistic about the future of the book, or of independent publishing as a viable business option, but I don't.
The 11th Hour
GBS 2.0 was filed on November 13, 2009 in New York Federal Court. On November 19, the Court granted preliminary approval of the amended settlement. The US Justice Department has until February 4, 2010, to file its opinion about the changes, and the final hearing will take place February 18.
Unfortunately, the deadline for opting out of the Settlement was September 4, 2009. However, I believe you can still "claim" your book(s) and request their removal from the Google books database, provided you do so by April 5, 2011.
If your book was scanned into the Google database before May 5, 2009, and you wish to file a claim for your $60 compensation, you must do so before March 31, 2011. To see if your books have been scanned into Google's Book Search Program, go here.
As of January, 2009, Google had scanned about 7 million books. By October, 2009, the figure had risen to 12 million. Apparently Google has been working overtime to scan every book it could get its hands on, while the settlement was pending.
You can read the entire settlement here.
Previous post on this topic: Google Taking Over the Publishing World? (April, 8, 2009)
