New York Chapter of the National Writers Union  (UAW Local 1981)

Activists Distribute Press Release at Google Book Settlement Hearing in Federal Court

Tempers Flare at the NWU Forum on the Google Book Settlement

 Working with its New York Chapter, the National Writers Union President Larry Goldbetter coordinated a forum, The Google Book Settlement: What's In It for Writers, held this past January 20, 2010, at the NWU/UAW headquarters in Manhattan. The forum was co-organized by the American Society of Journalists and Authors (ASJA), the Science Fiction and Fantasy Writers of America (SFWA), along with the NWU.

What follows is a summary OpEd analysis regarding several key points garnered from the event written by Louis Reyes Rivera, Chair of the NY Chapter.]

In a nutshell, Google has been downloading tens of millions of books for years, many of which books still remain under copyright protection but for which copyright holders have yet to be paid royalties or residuals.

In 2005, the Authors Guild and the Association of American Publishers joined in suing Google for copyright infringement. After four years of initial litigation, the three parties arrived at an initial settlement of the case last November 2009. Immediately, the National Writers Union, the American Society of Journalists and Authors, and the Science Fiction and Fantasy Writers of America, and a number of individual writers objected to provisions of the proposed settlement, which in effect, grants Google the potential to establish a monopoly over books on the Internet, thus undermining other Internet markets (E-Books, Print-on-Demand, and the entire range of Internet Alternative and Self-publishing networks and web sites) now developing.

In addition to writers groups, both the Trademark, Patent and Copyright Office and the United States Justice Department filed notices of objection to the initially proposed settlement on the grounds that its provisions were tantamount to infringing upon copyright protections and that, in setting the stage for its monopoly over Internet publishing, the proposal was in violation of a number of anti-trust laws.

The three parties in litigation (AG, AAP, and Google) were subsequently ordered to address the concerns raised by the dissenting parties and to work out a second version of the proposed settlement. This second proposal is now what opponents to the settlement are warning all writers about. Their concerns formed the basis for two public forums co-organized by the NWU that took place last week in New York City (on Wednesday, January 20) and in the San Francisco Bay Area (on Friday, January 22).

The forum in New York City featured New York Law School Prof. James Grimmelmann, Attorney Lynn Chu, former AG President Paul Aiken, SFWA’s Michael Capobianco, ASJA President Salley Shannon, and NWU member Edward Hasbrouck.

As the speakers used their allotted segments to elaborate upon their respective positions (pro, con, neutral), I found Attorney Chu’s position to be the most salient and Paul Aiken’s position to be the more contradictorily acquiescent to the owners of Google.

In the case of Mr. Aikens, what he didn’t say was just as telling as what he did say – (1) several times, he emphasized the point that, by opting in on the Google Book Settlement, writers would be gaining access to virtually “tens of millions of dollars”; what he didn’t say is that Google stands to make tens of billions of dollars from the proposed settlement as it now stands, and do so at the expense of writers whose copyright and estate protections will be virtually made null and void (if not, contestable) by the settlement’s key provisions.

(2) Moreover, he didn’t explain that there are virtually tens of millions of writers whose works can be downloaded and sold via a Google monopoly (i.e., that his ‘tens of millions of dollars’ are to be shared by tens of millions of writers).

(3) As well, there’s the matter of the actual settlement amount that is supposed to be paid to the plaintiffs on behalf of authors whose works have already been downloaded. How much of that money ($60 per book?) will actually go to the author is still questionable, what with lawyers’ fees and publishers’ contract provisions with their respective authors, how ownership will be determined by whom, etc. The $60.00 will more than likely first go to the holders of the publishing rights (the publishers), not to the owners of the copyrights (the authors). It’s all still unclear.

(4) When asked about how authors and publishers will be selected to serve on the Book Rights Registry (BRR) board that is included in the settlement, he did admit that AG will name the initial authors and that the AAP will name the initial publishers serving on that commission.

What he didn’t discuss is the role that all other associations and writers’ groups will play in the formation of the BRR board, even while he reluctantly admitted that AG and AAP have already appointed an 'interim' Executive Director for that registry board and without having consulted with any of the writers' associations outside of the litigants. In effect, this leaves out all of the dissenting groups as well as the entire spectrum of alternative and small press publishers and authors, many of which latter have come to rely on the new Internet markets since their inceptions.

Ms. Chu, on the other hand, clearly enunciated her objections to the proposed settlement, categorizing it as illegal, unfriendly to authors, lacking provisions for financial evaluation, no liability cap on security breeches, no protections against potential hackers, and that the settlement, as it now stands, basically exonerates Google above the cited amount of fifty million dollars (one of the proposed settlement amounts). She urged everyone to read Article X of the proposed settlement and thus understand fully the threat to writers.

I went to Google Book Settlement, accessed the proposed settlement, scrolled down to Article X, and tried to read it slowly several times. From what I gathered in the reading is that those writers who opt in (agree to the provisions) cannot thereafter sue Google for any infringement, past or future. Article X, in effect, neutralizes writers’ rights.

As Attorney Chu attempted to explain it, the reason why a writer applies for copyrights over the given work is to protect that intellectual property by holding onto the option to legally sue someone for copyright infringement (unauthorized usage of their created works). By opting in, writers are agreeing to the provisions of Article X, and, in so doing, are forfeiting their right to sue – in effect and by extension, forfeiting the basis for copyrights. Individual writers who do not belong to such as the NWU or AG, et al, are left to bear their own expense in any attempt to assert their rights as copyright holders.

While Prof. Grimmelmann didn’t take a definitive position, he did point to both pros and cons, and was, consequently, less than clear. Mr. Capobianco (SFWA) and Ms. Shannon (ASJA) firmly stated that their organizations, as such, remained opposed to the proposed settlement, and Edward Hasbrouck (NWU), while most vociferous, had the least amount of time (barely five minutes) to clearly state his reasons for opposing the settlement (see his article at www.nwubook.org).

Interested writers should take the time to visit other web pages for more details: www.writersreps.com, www.asja.org, as well as both the Authors Guild and Google Book Settlement web sites. 

The latest deadline for opting in or out of the settlement just recently passed (January 28); those who had opted out while the first proposed settlement was under view did not have to do so again; those who had initially opted in had the option to opt in or out by the Jan. 28 deadline. Those writers who have and had not done anything, by default, are counted as having opted in, regardless of whether or not they even knew and/or understood what was/is at stake. One telling remark by Mr. Aiken is, when cornered, he reluctantly admitted that Google would not have accepted the logical inverse of the opt in/out options (i.e., that “doing nothing would be counted as having opted out!”), which, for me, speaks to an AG willingness to accommodate the very corporation it had brought a lawsuit against, in the first place. True to form, Publishers Weekly reported the NYC forum in terms that could only be described as having a “pro-settlement bias” (go to http://www.publishersweekly.com/article/CA6715814.html&, to read the PW article posted on 1/21/2010.

The next court date is just a few weeks away. Hopefully, there'll be enough dissension from writers' groups filing objections with the court, along with a significant number of individual writers who have chosen to opt out, that the court may see fit not to endorse the provisions of the proposed settlement. That element of respite may very well allow more writers ample time to weigh in on their options in a more informed manner. Certainly, of the more than 60 writers who attended the forum in New York, a clear majority appeared to at least understand that too much is being conceded to the Internet giant. There is, however, a real possibility that, if accepted, the current settlement may very well begin to establish a "case law" basis for rewriting the one part of the Constitution that protects intellectual expression. In turn, each individual writer with no organizational backing could be left having to bear the costly brunt of future litigation just to assert a basic right that had long ago been written into law.

As of this writing a federal judge is reviewing the out-of-court settlement between Google and two organizations that claim to represent the interests of  “all” writers: the Authors Guild and The Association of American Publishers (AAP). If the judge accepts the settlement, it would turn two hundred years of copyright protection on its head by establishing a compulsory license designed to give Google the right to earn millions of dollars from untold numbers of books, 70% of which are still in copyright.  The rights holders of these books  – referred to in the proposed settlement agreement as the “dead souls” – will get little or nothing. Mostly, nothing.
How did this happen, and what can writers do about it?

THE SETTLEMENT

Almost everyone agrees that it’s a great idea to make orphan works widely available. But e-publishers face the risk of lawsuits if the rights holder of the orphan work pops up and claims damages after they are reprinted. So Google set out to form a class action agreement that protects them against lawsuits in those cases.

Most books under dispute are orphan works. This means that it is difficult (read “expensive”) or impossible to locate the appropriate rights holders to ask for permission to digitize them. Google wants a blanket right to copy and publish all of them without obtaining permission.

The settlement under consideration in federal court will grant Google a carte blanche license to display up to 20 per cent of a copyrighted orphan work, to run ads along side the content – which is the main source of their multi-billion dollar business – and to sell the entire text for a price that Google has not yet announced.  Google will also sell the rights to blocks of texts to libraries, universities, etc.

THE BOOK RIGHTS REGISTRY

If the judge agrees to the settlement, the class action agreement will create a book collecting society, the Book Rights Registry. Google will put in 34 million dollars to start it up. The Registry will disburse  $45 million in settlement funds as compensation to copyright owners for past uses of their books IF the rights holder has registered with Google. If they rights holder fails to register, Google can say it made a “good faith” effort to find the holder and then pockets nearly all the proceeds, giving a fraction of the money to government agencies.

WHAT IS A CLASS ACTION AGREEMENT?

It seems strange that the Authors Guild and the publishing industry can claim to represent all the authors and rights holds of all the books ever published since 1923 (books published before 1923 are generally in the public domain). The class action law allows individuals and organizations to file class action lawsuits with the idea that they represent a whole class of individuals who have suffered some injustice under the current law. The Authors Guild claims to represent a class of injured authors under Google’s original practice of scanning books without first obtaining the rights to them. The Guild argued that Google’s practice was a blatant copyright infraction.

The Author Guild’s class action threatened Google with the possibility that the judge would rule in favor of the authors and award them a big share of Google’s financial pie. So Google got together behind closed doors with the Guild and the AAP and came to an out of court settlement. The agreement has some financial benefits for authors. But at its core the agreement gives Google the right to destroy 200 years of copyright protection -  protection that is inscribed in the U.S. Constitution. The proposed settlement gives Google the de facto right to copy, display on the internet with revenue-generating ads, and sell complete texts of books that are still in copyright without first obtaining permission from the rights holder.

This part of the agreement turns copyright on its head and then smashes the skull wide open.

THE NWU FIGHTS FOR WRITERS’ RIGHTS

The National Writers Union joined a host of other organizations, including the Association of Journalists and Authors, to oppose the settlement. We believe it is vital to the survival of writers and artists that our historic property rights be preserved. We do not oppose any agreement with Google; but we do insist that the settlement require Google to first obtain permission from the rights holder. We also want to see the actual monetary agreement before putting any settlement before a federal judge.

You can help with the campaign by joining the NWU’s efforts to publicize this issue. When you attend book signings, writing classes, conferences and book fairs, raise this issue among writers and book sellers. Write to your representatives. Send letters to the editor. STAY INFORMED ON THIS VITAL ISSUE by joining and receiving bulletins from the NWU.

Fight for your rights – because powerful people want to take them away!

Timothy Sheard, NY Chapter
 
 

Ed Hasbrouk on the Amazon-Macmillan Fight Over Pricing E-Books.

IMHO, the Authors Guild gets this one wrong again by claiming that authors' interests lie with Macmillan, continuing the pattern of representing the interests of more commercially successful authors (which are more often aligned with those of print publishers) over the larger
numbers of less commercially successful authors.  Most authors' e-books ren't going to be saleable for more than $9.99 -- only a few of the most popular, or the highest-value textbooks, are likely to command such
prices.

Authors can make *much* more money on an e-book sale at $9.99 (under the atest 70% revenue share currently being offered by Amazon to self-publishers) than on a $30 hardcopy sale, as long as the author has
retained or regained electronic rights and doesn't have to share e-book evenues with the print publisher.  The problem for print publishers with a $9.99 retail price is that it makes it more likely that readers will buy
the e-book (for which the writer gets a larger share) rather than the hardcopy (for which the print publisher gets the lion's share).

Current and past contracts that either give the author 100% or at least 50% of e-book and other subsidiary rights licensing revenues, and only 15% at most of hardcopy sales, means that authors the interest of print
publishers is in protecting hardcopy sales and resisting any shift to e-books, while authors have an opposing interest in shifting sales from low-revenue (to the author) hardcopy to high-revenue (to the author) e-books.

The important thing at this stage of the game is for us writers to make the reading public aware that we support lower prices for e-books, and to get readers to identify with us against print publishers as the enemies of
affordable e-books. Getting readers to understand that authors are on heir side against publishers, that most of the price of an e-book goes to he print publisher -- not the author and not the electronic distributor --and that many e-books are effectively bootleg editions for which the
author has been paid less than they are entitled by contract, will be key o winning public opinion.

I've posted some thoughts on this in my blog and elsewhere:ttp://hasbrouck.org/blog/archives/001819.html

http://www.interesting-people.org/archives/interesting-
people/201001/msg00259.html

http://laboratorium.net/archive/2010/01/29/gbs_more_essential_reading#comme

Solidarity,

Edward Hasbrouck