What the Amazon Kindle / Orwell Story Reveals About the Copyright Class Actions

Amazon has peremptorily and retroactively deleted from its Kindle book offerings George Orwell's Animal Farm and 1984. The reason is confusion over the rights status of those works. Today's New York Times story about this is at http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1&ref=business.

The Kindle deletion anecdote is one with tremendously important implications for both of the major authors' rights cases rattling around in the courts (the freelance case, now at the Supreme Court by the name Reed Elsevier v. Muchnick, and the Google Books settlement, now meeting unexpected delays and impediments in federal district court).

Many commentators are focused on the privacy issues raised by Big Brother Amazon's capacity to know everything about customers' reading lists -- and, on an even scarier level, to expunge material from them. The privacy piece is important, of course. It impacts on everything about Google's creepy ability to break down online data, and it is a factor in any intelligent cost-benefit analysis of the Google Books project in particular. But I'm going to leave the privacy question to others.

Instead, I want to suggest that the Amazon story exposes one of the big flaws in what I regard as these overly ambitious class action settlements. Both the freelance and the Google Books cases have license-by-default mechanisms. These are bad because they turn copyright on its head. However, I do not count myself among those who emphasize that aspect of their badness to the exclusion of everything else. I recognize that the defendants in the current big authors' copyright cases are innovators to varying degrees. And on a policy level, copyright paradigms should evolve appropriately in response.

But here's the thing: The way to achieve that is not through overreaching private court settlements. Hard cases are about facts, infringements, damages. They are not platforms for giving advantage to the very defendants who have trirggered the harm to the plaintiffs.

If the goal of the defendants in these cases is to create a publicly sanctioned "compulsory license," I'm all for that. It will be good for authors, good for readers, good for society -- altogether, a benign use of the wonderful resources of new digital technologies.

Let's be honest, though. The lawyers for infringing defendants have no substantial interest in opening the vault of information to the masses. Their interest is in covering the asses of the private for-profit entities that have usurped the role and prestige of the public library system.

The Amazon Kindle Orwell fiasco reminds me -- again -- of the outrageous conduct of the database company defendants in the freelance case. As early as 1994 (and, really, in all probability, far earlier), Information Access Company, later Thomson Gale, knew full well that a substantial subset of the articles on its products was not properly licensed. Because the aggrieved rights holders were powerless freelance writers, this corporation, and others like it, simply blew off complaints or, even more perniciously, deleted by stealth the works of those who complained. Years later, after the fallout of the Tasini case at the Supreme Court was becoming clear, Barbara Quint of Information Today began expressing alarm over supposedly comprehensive databases that were now being turned into "Swiss cheese." Hey, no kidding!

The Amazon story illustrates the same lesson of the class actions: The new global information system needs to move toward compulsory licenses. Real compulsory licenses. Not pseudo license-by-default fine-print tricks.

Real compulsory licenses will involve comprehensive good-faith negotiations with all the players. They will require antitrust waivers. And they will be sanctioned by acts of Congress -- not by patchwork lawsuit settlements, which, more than anything else, are about leveraging organizations like the Authors Guild while it wrongly projects an image of representing all of us, and about the lawyers desperate to collect multimillion fees for helping perpetuate a regime of Swiss cheese.

My Google Books Settlement Survey for Publishers Weekly

Below is my completed survey for Publishers Weekly on my opinion of the proposed Google Books settlement. Submit your own answers at http://www.zoomerang.com/Survey/survey.zgi?p=WEB229EB66ZEQ5.

===============


1 How familiar are you with the terms of the Google Book Search Settlement?
Very familiar
Somewhat familiar
Vaguely familiar
Not at all familiar

Very familiar.



2 Which best describes your position on court approval of the Google Book Search Settlement?
I enthusiastically support approval of the settlement
I oppose the settlement
I support approval of the settlement, but with changes
I oppose the settlement without key changes
I support approval of the settlement, with some reservations
I am indifferent
I am still unsure

I oppose the settlement without key changes.


Comment:

Authors who participate in the settlement cannot get terms inferior to those routinely and publicly offered to authors outside the settlement.

There must be a true compulsory license rather than the proposed settlement's "license by default."

A compulsory license must be truly universal, involving negotiations with all the stakeholders. Otherwise, it runs afoul of antitrust law and is simply an arm of defendant Google's product development and marketing divisions. For Google to achieve this advantage by virtue of calculated and systematic infringement is wrong.

Many observers -- including the Register of Copyrights -- have questioned whether a compulsory license can be legally achieved via private litigation. They believe such a step requires an act of Congress.



3 What action have you taken or will you take on the proposed settlement?
I have registered to assert my rights
I plan to register and assert my rights before the January deadline
I do not plan to take any action
I have opted out
I plan to opt out by the September 4 deadline
I have or plan to formally object to the settlement
I have or plan to file comments SUPPORTING approval
I have or plan to file comments OPPOSING approval.
I am undecided

I have opted out.



4 Do you have standing to participate in the settlement?
Yes
No
Not sure

Yes.



5 If you have standing, do you feel you've been adequately notified of your need to act to preserve your rights?

No.



6 If you have standing, do you feel you have had enough time to make a sufficiently informed choice about participation in the settlement?

No.


Comments:

This is an incredibly complex action. I consulted on the very first copyright class action for freelance authors (Ryan v. CARL Corp., filed in 1997 and settled in 2000), and I lead a slate of objectors in the freelance case now at the Supreme Court (Reed Elsevier v. Muchnick), and I have not read all of the hundreds of pages of legalese of the Google Books settlement, and it is very hard to imagine others doing so. The settlement parties and their lawyers should be required by the court to undertake a full year of transparent public education of the implications of this settlement for creators, publishers, and consumers. My own contribution to that process would include the painful observation that the Authors Guild, the self-appointed representative of the author class in this case, is the same party that engineered the horrible sellout In Re Literary Works in Electronic Databases Copyright Litigation (now the aforementioned Reed Elsevier v. Muchnick).



7 How would you best describe your professional affiliation?
Large U.S. publisher
Medium-sized U.S. publisher
Small U.S. publisher
Academic publisher
Foreign publisher
Self-published author
U.S. author
Foreign author/rightsholder
Both author and publisher
Librarian
Literary agent/manager
Not involved in book industry
Other, please specify

U.S. author.



8 Are you currently a member of the Authors Guild?

No.



9 Did you support the filing of the initial lawsuits by publishers and the Authors Guild?
Yes
No
No opinion.

No opinion.



10 In your own words, please describe your position on the initial lawsuits filed by the Authors Guild and by publishers in 2005. (For example, do you believe the suits were necessary, unnecessary, well-advised or ill-advised, or do you think Google's scanning and limited display was illegal, or allowable under fair use?)

Much of my response is contained in #6 above. I am on record as noting approvingly the contrast between the $125 million settlement fund in this case and the $18 million cap on the settlement fund in the freelance case (though I have not been privy to enough information to know whether the $125 million fund here is adequate, either). I also praised the concept here, if not the execution, of a royalty system rather than a 100% naked rights grab. I believe a fair reading of the 2001 Supreme Court decision in Tasini v. New York Times (the case that gave rise to what is now Reed Elsevier v. Muchnick) is that the Court was encouraging models that allocate to writers a fair share of the revenues from new technologies.



11 In your own words, please explain your position on the settlement:

Largely covered by the responses above.



12 May a reporter from Publishers Weekly contact you to discuss your answers?
Yes, you may contact me for further discussion
No thanks

Yes, you may contact me for further discussion.

Supreme Court Oral Argument Set for October 7

Blog reader and commenter "Moxie" was the first to point out that the Supreme Court yesterday published the schedule for oral arguments during the October term. Our case, Reed Elsevier v. Muchnick, is set for Wednesday, October 7.

By coincidence, October 7 is also the current date scheduled by U.S. District Court Judge Denny Chin date for the fairness hearing in the Google Books settlement.

Publishers Weekly Survey on Google Books Settlement

Thanks to Judith Trotsky, one of the co-objectors to the freelance settlement (Reed Elsevier v. Muchnick), for this information from Publishers Weekly:

With a September 4th deadline looming to opt out of or object to the Google Book Search Settlement, PW is conducting a survey designed to gather a broad view of how the Settlement is being viewed.

We urge you to take a few minutes to answer this brief, targeted questionnaire to help us gauge industry opinion on whether the settlement should be approved, modified or rejected. Note that you do not have to have standing in the suit to participate in the survey.

Please click on the link below when you are ready to take the survey.

http://www.zoomerang.com/Survey/survey.zgi?p=WEB229EB66ZEQ5

Results of the survey will be shared in the August 24th issue of PW. If you have questions or comments about the survey, please contact Laura Girmscheid, PW Research Manager at lgirmscheid@reedbusiness.com.

Thank you for participating!

Slow News Summer in Both Cases

The Supreme Court has extended until August 26 the deadline for filing amicus briefs in support of the Second Circuit's ruling. These include the brief of Deborah Jones Merritt, whom the Court appointed to defend the appellate decision (since both the settlement parties and we objectors oppose it).

Google Books buzz -- distinct from our freelance case, of course, though somewhat related to it -- has hit a lull. We're all eager to know what the fallout will be from both the Justice Department antitrust investigation and the new September opt out/objection deadline. A recent NewsBreaks article by Paula Hane at the Information Today website says, among other things, that further delays, pushing the fairness hearing past the current scheduled date of October 7, would not be surprising. (See "Update on the Google Book Settlement," July 2, http://newsbreaks.infotoday.com/Spotlight/Update-on-the-Google-Book-Settlement-54998.asp.)

In its counter PR, the Authors Guild has said practically nothing about the core author-centric arguments against Google's terms. An open letter by AG president Roy Blount Jr., which got picked up by the Los Angeles Times, focuses exclusively on orphan works, the main issue for librarians, consumers, and Google's competitors. This exhibits a confidence that writers will never assert their interests with vigor or vision. That such confidence emanates from an organization purporting to represent those interests is the crux of the problem in both cases.

Justice Department Informs Court of Google Antitrust Investigation

The Justice Department has sent a July 2 letter to Judge Denny Chin informing the court of the antitrust investigation of the Google Books settlement. The judge responded with an order that the government would need to submit substantive comments by September 18, in advance of the October 7 fairness hearing. Nothing terribly new, but an interesting incremental step at the Kabuki-dance level of this story.

Deputy Assistant Attorney General William F. Cavanaugh's letter, attached to Judge Chin's order, is viewable at http://www.scribd.com/doc/17045068/SDNY-Order-DOJ-Letter.

(Thanks to Anita Bartholomew)

'Bytes in Brief' Bites Man

The online technology and law monthly roundup, Bytes in Brief, has broken its four-year silence on the case now known as Reed Elsevier v. Muchnick. (This lapse in news judgment has miffed your humble blogger; see "Yes, Sensei. Whatever You Say, Sensei," June 1, 2009, http://freelancerights.blogspot.com/2009/06/yes-sensei-whatever-you-say-sensei.html.)

The lead item in the new July issue of Bytes in Brief, viewable at http://www.senseient.com/publications/bytes/html/july_2009.html, tiptoes its way to referring to a "major copyright case" involving "a settlement with freelance writers." The article erroneously states that the Supreme Court granted certiorari on February 23 (actually it was on March 2), and links only to the defendant publishers' brief. But it beats the sounds of silence.

What One Book Publisher Is Telling Its Authors About Google

My book publisher, Toronto-based ECW Press, included a note about Google Books along with their annual royalty accountings. ECW's co-publisher, David Caron, gave me permission to reproduce the text below.


You have probably heard about the proposed Settlement Agreement arising from a class action suit launched by a group of publishers and authors against Google in the United States. Under its Library Program since 2004, Google scanned roughly seven million books from the collections of a dozen leading U.S. libraries, without the permission of copyright holders. The proposed Settlement covers U.S. rights in books published almost anywhere in the world prior to January 5, 2009. This includes your books.

The Settlement and its process are quite complex, and has significant implications for authors and publishers. The full agreement, as well as a summary and FAQs, are all available online at www.booksettlement.com, and you should carefully review the information there.

The most pressing date is September 4, 2009. This is the date by which an author or publisher must "opt out of the Settlement, or submit comments. If an author does nothing before September 4, then the author is covered by the Settlement and cannot sue Google for digitizing works under the Library Program. In part of the Settlement, the author and publisher share a cash payment of a minimum of $60 (U.S.) per book from Google as compensation, if Google digitized thhe book without consent prior to September 4, 2009.

ECW has obtained a list of its book digitized without consent, and none of your titles were digitized. So for your ECW titles at least, it's moot whether you opt out of the Settlement. Of course, you may wish to opt out simply to voice opposition to the Settlement. One of our authors, Irvin Muchnick, makes a strong case for this at http://www.beyondchron.org/articles/Google_Books_Settlement_Has_Bombed_in_New_Haven_6857.html. If you decide to opt out, you can do so at http://www.googlebooksettlement.com/r/enter_opt_out.

ECW itself is not going to opt out of the Settlement Agreement. We do not want to pursue a legal action against Google, and do want the opportunity to gain at least some compensation as a result of Google's unauthorized digitization. Most importantly, being part of the Settlement does not mean that Google can use the book in its future plans.

Whether in the Settlement or not, either ECW or any author can remove a title from Google's database, and any of its future offerings. Google has negotiated the ability to further exploit the digitized works -- selling and licensing the works, generating revenue for Google, and then distributing half of the revenue to authors and publishers via the newly incorporated Books Registry. Again, for recent books in print, payment goes to the publisher who then must distribute it to authors. For older books, there is a means to distribute payments to both authors and publishers. It's similar to Access Copyright in this respect. We can choose to includes titles in this, or not.

For a couple of years now, ECW has been part of the Google Books Partner Program, under which ECW sent a PDF to Google to enable web searchers to obtain search results from a book and then view selected pages from the book (no more than 20% of the book). It's a marketing tool, the same as leafing through a book in the bookstore before you buy it, and the Google site has links to online retailers (including ECW's website) to encourage buying the actual book. We have noticed that a lot of our traffic to our website comes from Google Book Search. Titles that were provided to Google for this program can also be included in its future revenue plans, or they can be withdrawn.

Back t0 the Google Settlement Agreement, there are two more key dates. There will be a Final Fairness Hearing on October 7, 2009. If the Settlement is approved, then to receive a part of the cash payments, an author must register by January 5, 2010. If you don't opt out, then we would encourage you to register whether your books were digitized or not, if only to stay in the loop on the future Google offerings.

Resetting the Google Books Debate -- Remember the Authors?

This blog has been silent for a couple of weeks, mostly because there's not a heck of a lot new to say. The Freelance case before the Supreme Court is awaiting the amicus brief defending the Second Circuit decision. Then an oral argument date will be set.

The Google Books story will continue to be watched closely, up to and beyond its new September opt-out/objection deadline, and for the ongoing scrutiny by the Justice Department Antitrust Division.

At this point I want to chime in with a point that I think is being missed in the extensive Google coverage. Most of the commentary focuses on the concerns of consumers over the disposition of "orphan works" and on the concerns of Google's competitors. These are important issues, and if they wind up being the driving force behind the scuttling of the fatally flawed Google Books settlement, then I'm down with that. Mind you, I'm not just saying, "Whatever it takes." I'm saying that the interests of consumers and of a diverse array of electronic publishers in getting these ambitious new arrangements done the right way are something authors should be giving close attention.

But I also add, respectfully, that the problem with Google is not just orphan works. There are plenty of books out there with identifiable mothers and fathers -- more recently published ones, and ones continuing to pass daily through the print-publishing pipeline -- that are being stampeded into bad terms by another non-transparent sellout engineered by the Authors Guild.

Leaving aside the revenue splits, as well as the odious reality that Google blatantly and systematically infringed, by willfully exploiting the "ask forgiveness, not permission" model, the license-by-default provision alone is unacceptable.

Someone needs to keep saying that, and keep saying that our elected leaders in Congress, not just the courts, must assert themselves in retooling copyright law in ways that lay down crack-free asphalt on the information superhighway.

And if nobody else wants to say that, your humble blogger will.