If you’re a book author, keep your eyes open. Under the Google Book Search settlement agreement, you may have to take action or cede rights to Google to use your work. The Google Book Search settlement agreement is a proposed deal between the Authors Guild, the Association of American Publishers, and Google. The deal arose from the Google Books Library Project, an attempt by Google to scan several book collections, and make them searchable. After Google announced its plans to scan the collections, several authors and publishers filed suit, asserting that Google was infringing upon their copyrights. Now the parties are attempting to resolve that litigation. But are some authors being caught in the crossfire?
The Proposed Deal
Wikipedia summarizes the settlement as follows:
In October 2008, the parties to the lawsuit proposed a Settlement Agreement, which called for Google to pay out $125 million: $45 million would go to pay rightsholders whose copyrights had allegedly been infringed; $15.5 million to the publishers’ legal fees; $30 million to the authors’ lawyers; and $34.5 million toward the funding of a new entity provisionally called the Book Rights Registry, a form of copyright collective that will collect revenues from Google and dispense them to the rightsholders, among other duties. In exchange, Google is released from liability for its book digitization. The Agreement is built upon an intricate joint venture arrangement for the management of Google’s book project, including a variety of revenue models, including an "institutional subscription database" that will be sold to colleges and universities; the "consumer" model of selling perpetual access to individual books; and various anticipated revenue models.
In February 2009, a Google Book Search Settlement web site was created where rightsholders of books could "claim" their books for the purposes of the Settlement. Rightsholders whose books have been digitized by Google and who have claimed their books will receive a one-time payment of $60 per book, or $5 to $15 for partial works (called "inserts"), plus 63 percent of all revenues associated with their works.
The interesting part of the proposed settlement is that it is opt-out, rather than opt-in. In other words, authors who meet the class member criteria have to "claim" their books to be entitled to compensation, or to exclude their books from scanning. In other words, you snooze, you lose. For many books, though, this might be the only solution, as the authors of many works can no longer be found.
Who is Opposing the Deal?
The U.S. Department of Justice has opposed the deal, saying that it extends beyond the parties’ dispute. Indeed it does. The parties are giving Google broad, sweeping, rights, and deciding what the rights of non-parties to the litigation will be. Perhaps this is one of the purposes of class action litigation, but the ramifications of the proposed settlement are shocking. This private agreement would, in essence, create new law, without any participation from Congress.
Other companies and organizations oppose the deal as well. Several entities have banded together to form the Open Book Alliance. The Open Book Alliance is made of the following members: Amazon.com, American Society of Journalists and Authors, Council of Literary Magazines and Presses , Internet Archive, Microsoft, National Writers Union, New York Library Association, Science Fiction and Fantasy Writers of America, Small Press Distribution, Special Libraries Association and Yahoo! The Open Book Alliance opposes the book deal. In its own words, the alliance "will counter Google, the Association of American Publishers and the Authors’ Guild’s scheme to monopolize the access, distribution and pricing of the largest digital database of books in the world."
What is the Answer?
Should the deal be shot down? What are the alternatives? If Google doesn’t digitize books, who will? Or is the answer to allow Google to digitize the books, but with stricter parameters? Or do the terms of the deal simply need to be tweaked, making it opt in and not opt out? But then what about books where the authors can’t be found?
Or does the problem require a bigger solution – fixing copyright? It seems that many of the problems with the book deal, especially the issues with older orphaned works, would be fixed if copyright had a shorter shelf life. A federal law, know jokingly as the "Mickey Mouse Protection Act" (because many feel that Disney "bought" the law), extended the copyright on works made in 1923 or later, so that they won’t enter the public domain until 2019, at the earliest. After that, who knows? Disney or other companies will almost certainly push to extend copyright once again.
The book deal undoubtedly would bring about some good. Millions of books would be digitized and made available, including public domain books, which would be made freely available. Copyrighted books would be made available in "snippets." Nobody else was doing it. Surely within those millions of books are books that would otherwise be lost forever. And the value of having books available in digital form can’t be overestimated. Say goodbye to book scarcity.
The deal isn’t final yet. Last week, a federal court judge heard argument on the proprietary of the deal, and a decision is still pending.
The solution to many of these problems would be to fix copyright. I’m a fan of copyright, but within reason. The initial idea behind copyright – to give authors and artists protection and incentive for a limited period of time – has been abused by moneyed interests in Washington. If older books were out of copyright, then Google wouldn’t need to worry about the opt-out, opt-in question. It could freely use most of those books. For newer books, Google would still need to get the permission of authors. Something tells me that we won’t see any weakening of copyright, though.
What Do You Think?
What’s your take on the situation? Do you see a solution?
Scanning the Horizon of Books and Libraries, by Amy Goodman