Congress Must Get Involved in Google Books Solution

The Justice Department investigation of the Google Books class action settlement has slowed down that particular train for at least four months. That is a good thing, but it is not enough. While the judicial and executive branches of government weigh in, no one is yet talking about the silence of the third player: the legislature.

There are around a zillion reasons for emphasizing the need at this point for Congressional involvement.

I have pointed previously to the observations of Register of Copyrights Marybeth Peters (who works under the Library of Congress) about the inappropriateness of litigation as a platform for promulgating fundamental copyright policy. In the global marketplace of digital technology, whatever we do will have to be harmonized with our international treaty commitments. And infringement lawsuits should be about resolving damages, not about creating the framework for the damaged to enable the damagers to take their borderline practices to new levels.

Then there's the antitrust angle, which is the pretext for the Justiice Department's intervention in the Google case. (Though let's see how seriously Attorney General Eric Holder takes this role: Google CEO Eric Schmidt is a technology adviser to President Obama.) Even if Google were not a target for possible trust-busting, the fact of the matter is that compulsory licenses, such as the one contemplated in this settlement, require Congressional antitrust waivers. I support the compulsory license concept. But the House of Representatives and the Senate would never casually pass a waiver for the benefit of a single corporation that didn't even exist a few years ago. In the process, the laws of political physics would dictate -- properly so -- that all the stakeholders have a voice in the shape of a book-scanning registry and royalty system.

To repeat my basic theme, the crisis of the Google settlement marks an historic opportunity for all of us to get it right -- not only in this case but also in the freelance journalists' case, Reed Elsevier v. Muchnick, which currently rests at the Supreme Court.

Jamie Court, the president of Consumer Watchdog, just wrote an excellent piece for Huffington Post headlined "Consumers & Authors Uniting Against Google Book Deal." The link is http://www.huffingtonpost.com/jamie-court/consumers-authors-uniting_b_192987.html.

For 15 years I have been working toward the day when information users and writers would start seeing the thorny issues of new technologies the same way, and cooperate toward the solutions that would both enhance access and empower independent creators.

I believe that day is at hand.

Google Public Policy Blog: On Message, Off the Mark

Adam Smith, director of product management for Google Books, posts today at the Google Public Policy Blog. (And, yes, that's his real name.) The link is http://googlepublicpolicy.blogspot.com/2009/04/google-book-search-settlement-will.html.

"Over the last few weeks we've heard a number of questions," Smith says in the opening to a promised series defending the proposed class action settlement with the Association of American Publishers and the Authors Guild.

What a bland way of acknowledging that the settlement has been delayed for four months by the judge, in the face of a firestorm of protests from every angle across the globe, and is being probed by the Justice Department on antitrust grounds.

If this is the best Google can do, then its project is not ready for prime time. The company needs to confront the criticisms of the deal head-on if it wants to win the hearts and minds of public-access champions; it can't simply recycle press releases. Is Google entitled to use legal jiu-jitsu to turn a defense of an infringement lawsuit into a non-legislated compulsory license for the profit of only one entity? Does a court have the authority to bless an arrangement with a self-appointed Books Rights Registry that offers terms less favorable to authors than those already offered by Google itself?

All good questions. All simply ignored.

Google should get itself unjoined from the Authors Guild's hip and open up the tent. There are lots of people of good will out there who are not out to destroy the potential advantages of a legally sanitized Google Books, but to reap its potential for everyone.

James Grimmelman, the New York Law School professor who is seeking to intervene on behalf of "orphan works" and related issues, acknowledges that the settlement as written would be "an improvement in the status quo," but rightly says that's not good enough. The settlement, Grimmelman adds, "creates two new entities -- the Book Rights Registry Leviathan and the Google Book Search Behemoth -- with dangerously concentrated power.... We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight."

From my standpoint, there's a lot more to say about the flaws of the settlement, but this is where authors should be focusing right now. It's a rare public-education moment for us to demonstrate to consumers that creators are their friends, not their enemies, in the new information age.


Irv Muchnick

Google Books Settlement Collapse -- Tweet By Tweet

From the timeline at http://twitter.com/irvmuch:


You heard it here 1st (OK, maybe 2nd or 3rd): Google Books settlement is going down. And no one at Google is losing sleep over it, either.
3:36 PM Apr 22nd

Why the Google Books settlement is doomed: http://snipr.com/gjx2a [freelancerights_blogspot_com]
11:37 AM Apr 23rd

Running next Monday in Beyond Chron: my essay "Google Books Settlement Bombs in New Haven."
2:41 PM Apr 24th

Key to fate of Google Books settlement is not authors or publishers -- it's awareness of consumers/librarians that everything doesn't fit.
7:21 AM Apr 27th

"Google Books Settlement Has Bombed in New Haven": http://snipr.com/gue5m [www_beyondchron_org]
8:32 AM Apr 27th

My Google Books settlement piece published just as judge was throwing out Internet Archive motion to intervene -- they can still object.
8:33 AM Apr 27th

No. 1 for "Google Books" at Google News: "Google Books Settlement Has Bombed in New Haven": http://snipr.com/gue5m. Others in next tweets.
9:40 AM Apr 27th

No. 2 for "Google Books" at Google News: "Steinbeck Heirs Seeks to Slow Google Books Settlement": http://snipr.com/gujhe [nytimes]
9:42 AM Apr 27th

No. 3 for "Google Books" at Google News: "Internet Archive wants book copyright indemnity like Google": http://snipr.com/gujno
9:44 AM Apr 27th

No. 4 for "Google Books" at Google News: "174 writers, poets reject Google book search offer": http://snipr.com/gujt9 [Yomiuri, Japan]
9:46 AM Apr 27th

Google Books settlement seeks 60-day extension -- another sign they're in trouble: http://tinyurl.com/cneo2w.
4:34 PM Apr 27th

More offshoots of "Google Books Settlement Has Bombed in New Haven." UK booksellers' oppositon: http://snipr.com/gxand. More in next tweets.
about 16 hours ago

Publishers Weekly: "resistance stiffening" to Google Books deal. http://snipr.com/gxb2v
about 16 hours ago

German authors outraged by Google Books -- 1,300 pen "Heidelberg Appeal" letter to President Kohler: http://snipr.com/gxbba [Der Spiegel]
about 16 hours ago

Look for "Google Books, Chapter 2: The Worldwide Resistance," Wednesday at http://beyondchron.org.
about 12 hours ago

"Google Books and 'Muchnick' -- Their Similarities Are Different": http://snipr.com/gy9m6 [freelancerights_blogspot_com]
about 9 hours ago

Google book settlement bulletin: Judge Denny Chin extends opt-out/objection deadline to Sept. 4; fairness hearing will be Oct. 7.
about 8 hours ago

Justice Department examining Google deal: http://snipr.com/gyqxb [www_nytimes_com]
about 5 hours ago

Justice Department Examining Google Books Deal

http://www.nytimes.com/2009/04/29/technology/internet/29google.html

Google Books Settlement: Four-Month Extension

Judge Denny Chin today issued an order extending the opt-out/objection deadline in the Google Books settlement to September 4, and setting the fairness hearing for October 7.

October is also the start of the term in which the Supreme Court is expected to hear oral arguments in Reed Elsevier v. Muchnick.


Irv Muchnick

Google Books And 'Muchnick' -- Their Similarities Are Different

I've already used the line, probably apocryphal, by Yogi Berra's son Dale: "Our similarities are different." Now I may as well milk it. Today's news about the request for an extension of the May 5 opt-out/object deadline in the Google Books settlement highlights another distinction between that case and our freelance journalists' case, now docketed at the Supreme Court as Reed Elsevier v. Muchnick.

The difference is that in "Freelance," it is the defendants who need the settlement more. In Google, it is the plaintiffs -- specifically, the plaintiff Authors Guild. Let me explain.

The AG's outside counsel, Michael Boni, was key in both cases. (Needless to add, Boni and all the other plaintiffs' lawyers in both cases really want their multimillion-dollar fees, which are contingent on successful conclusion of the settlements they helped engineer.) But in Freelance, AG and the other "associational plaintiffs" -- the National Writers Union and the American Society of Journalists and Authors -- had no direct economic interest in the shape of the settlement. They were just doing what they do best, or worst: posturing on behalf of writers' rights while worrying that if they pushed too hard, they would get cut off from the industry access and perks that are their big selling membership points.

The parties that needed the Freelance settlement, and what they called "complete peace," were the defendants. The infringers. Remember? They'd been doing it for decades, they continued to do it even after Tasini v. Times definitively ruled their practices illegal, and they continued to continue to do it even during the pendency of the settlement. Indeed, they're still doing it, and still expanding the scope and product lines of their systematic infringement, even as we speak. They have used the cover of "mediation" and the lack of resolution in this case as cover for creating more facts on the ground, which make it more pragmatically difficult to unring the bell of their willfully damaging conduct.

No matter what you think of Google, it is not the same as a classic publisher. Google is a tinkerer. It makes gadgets -- toys for manipulating information with technology. It's in the publishing business, but only in the sense that its vision of a Googleized world puts it at the center of every business of every kind.

Google is building Google Books on an infringing model: the now-familiar principle of "asking forgiveness, not permission." To be fair, though, the company has staked out a more-or-less-honest, avant-garde position, and is trying to use this litigation as one prong of its nouveau business model.

What I'm saying is that while Google wants a settlement, Google doesn't need a settlement, especially not one in this exact form.

The party here that needs a settlement is the Authors Guild. In order to fund and legitimize its Books Right Registry, AG has shown that it is willing to give class members terms inferior to what Google already offers directly through its Partner Program ... that it is willing to participate in imposing a de facto monopoly on Google's competitors and on information consumers ... that it is willing to bless an illegitimate license-by-default private rights algorithm, masquerading as a public-spirited "compulsory license" ... that it is willing to do all sorts of stuff you just can't use a class action to do.

It's interesting to note that at key points in the challenges to the Freelance settlement, the defendants were the ones who took charge and the plaintiffs were the ones who followed. Who played point on appellate briefs would be one example. The ridiculous settlement amendment grandfathering new infringing products, without adding a dime to the settlement fund, is another example.

But in the current crisis for the Google settlement, it is the Authors Guild and Boni who are trying to shout down the herds of protesters at the corner of Desperation and Ripoff.

Who filed the response to last Friday's letter motion to push back the deadline, from authors and authors' estates (http://www.inklingbooks.com/files/-settlement-extension-letter.pdf)? Why, Michael Boni, of course (http://www.scribd.com/doc/14685856/Ltr-M-Boni-to-J-Chin-42409).

"The arguments ... about the Notice Program are without merit," Boni rambles, because the notice has been "multi-faceted, exhaustive, worldwide in scope." Nonetheless, the parties are "amenable" to a 60-day extension. If everything is so hunky-dory, then why is Boni agreeing to any extension at all?

In a nutshell: Because the dude is vamping. His latest sellout settlement is also in trouble, and he knows it.


Irv Muchnick

Google Books, Chapter 2: The Worldwide Resistance

Look for "Google Books, Chapter 2: The Worldwide Resistance," tomorrow (Wednesday, April 29) at http://beyondchron.org.

More Growing Evidence That the Google Books Settlement Has Bombed in New Haven

* British booksellers' opposition:
http://www.thebookseller.com/news/83739-ba-warns-rights-holders-over-google.html

* Publishers Weekly: "resistance stiffening"
http://www.publishersweekly.com/article/CA6654551.html?desc=topstory

* German authors outraged -- 1,300 sign so-called "Heidelberg Appeal" letter to President Horst Köhler, Chancellor Angela Merkel, and the heads of 16 federal states
http://www.spiegel.de/international/germany/0,1518,621385,00.html


And don't forget to read "Google Books Settlement Has Bombed in New Haven"
http://www.beyondchron.org/articles/Google_Books_Settlement_Has_Bombed_in_New_Haven_6857.html

More on Google Delay

Here's the coverage from Wired.com: http://www.wired.com/epicenter/2009/04/google-agrees-to-books-settlement-delay/.

"A small coalition of copyright holders," including Arlo Guthrie and the heirs of John Steinbeck and Philip K. Dick, requested a four-month delay, calling the settlement "unprecedented" in scope and saying they need more time to make to decide “about perpetual digital rights.”

Google asked for a 60-day extension, which likely will be granted.

Google Seeks 60-Day Extension

Another sign that the settlement is in trouble:

http://news.cnet.com/8301-1023_3-10228345-93.html

Current Rankings at Google News Under 'Google Books'

1. Your humble blogger's "Google Books Settlement Has Bombed in New Haven," http://snipr.com/gue5m

2. "Steinbeck Heirs Seek to Slow Google Books Settlement," http://snipr.com/gujhe

3. "Internet Archive wants book copyright indemnity like Google's," http://snipr.com/gujno

4. "174 writers, poets, reject Google book search offer," http://snipr.com/gujt9


Irv Muchnick

'Google Books Settlement Has Bombed in New Haven' (at Beyond Chron)

"The gut says the Google Books class-action settlement – negotiated by the Association of American Publishers in conjunction with the Authors Guild – is doomed. Too many moving parts, running too much roughshod over existing law. But I don’t come to this conclusion from the perspective of a Central Casting new-tech basher. Something very important for the future of authors is going on here, and Google obviously will be a big part of that. It’s just that a preemptive sellout settlement by an organization speciously claiming to represent the interests of the global community of writers cannot be allowed to define that something."

So begins my piece today at Beyond Chron, the San Francisco online newspaper, headlined "The Google Books Settlement Has Bombed in New Haven." The link is http://www.beyondchron.org/articles/Google_Books_Settlement_Has_Bombed_in_New_Haven_6857.html.

The essay was being published just as news came that a federal judge has rejected the Internet Archive's motion to intervene in the Google settlement. The Internet Archive is still free to file objections.

Irv Muchnick

P.S. to Google Books Settlement Going Down

... And my list of the settlement's opponents, in the previous post, didn't even mention this one:

"Google Books Rival Objects to Settlement"
http://www.law.com/jsp/article.jsp?id=1202430018507&rss=newswire

Google Books Settlement Is Going Down -- Here's Why

Your humble blogger yesterday got an email from a reporter for a trade magazine who is writing a piece about how the Google Books class-action settlement is in trouble. Could I talk with him Friday?

The scheduling department at Freelance Rights Blog LLC will look into clearing some time for a fellow knight of the keyboard. (You can't call us ink-stained wretches any more.) Meanwhile, let me jot down some notes.

As y'all know, I spearheaded the objections to the freelancers' UnSettlement, which is now moored at the Supreme Court as Reed Elsevier v. Muchnick. Recently I decided to opt out of the Google settlement and also encourage others to opt out. The different approaches are a function of the fact that my opposition to the two deals springs from different sources. When Dale Berra, Yogi's son, was asked to compare them as baseball players, Dale was supposed to have said, "Our similarities are different." So, too, are the flaws of these two settlements, from my perspective.

In the case of Freelance, I knew -- as in, with certainty -- that the settlement was a horrible sellout because I had been involved with the issue for well over a decade, and with the litigation that led to the settlement for most of that time. I knew that the former president of the associational plaintiff National Writers Union, for which I was once on staff, was pulling everyone's leg when he proclaimed an $18 million settlement fund, including attorneys' fees, "found gold." I knew that plaintiffs' lawyer A.J. DeBartolomeo, for whom I had consulted on a precursor case at another firm, was not telling the court the truth when she swore in a declaration that there was "no" evidence of willful infringement. I knew that one of the named plaintiffs richly deserved the sobriquet Paula "Pinocchio" McDonald for her perjurious representations of my contacts with her.

Finally, I knew that a lawsuit launched for the purpose of eroding the all-rights-contracts regime and creating a royalty system had morphed into a sleazy license-by-default rights grab by the defendants. For me, objecting to the UnSettlement was as natural as breathing.

Subsequently, Google Books was brought to us by some of the same folks who had concocted the UnSettlement: the Authors Guild and its law firm. Even so, I didn't want to shoot from the hip, and I still don't. When Google was announced, I sat back and watched because I didn't come to it with the same knowledge base. Indeed, some of the other objectors got mad at me when I criticized Freelance, in part, by contrasting it with the prospective royalty system that Google, at least, did have. The people who were mad at me wanted me also to note that Google had the same illegal license-by-default mechanism as Freelance. And they were right about that.

I still haven't had time to wade through the hundreds of pages of Google legalese -- which itself is part of the problem with all of these settlements -- but I've heard enough to understand that it's a lousy deal. Most importantly, I've heard compelling evidence, from stakeholders other than the writers who would be most explicitly screwed, that they recognize it's a lousy deal.

This last leads to my bold prediction, which is not a judgment but an analysis. Google has a sky-high profile and is a stationary, deeper-than-deep-pocketed target; and at the bedrock, the settlement lacks requisite consensus. Therefore, it is going down. Whether it gets navigated successfully through the upcoming "fairness hearing" before a federal judge, I can't say. Nor do I know how many torpedoes the stubborn lawyers (especially on the plaintiffs' side) are prepared to damn before they succumb to the inevitable and reopen negotiations. But the digital handwriting is on the touchpad.

Just look at the lineup. As I type this, a consumer group has already asked the Justice Department to intervene. I've also heard credible rumors of the imminent filings of objections by assorted authors and authors' groups. Key librarians have expressed reservations. Register of Copyrights Marybeth Peters herself mused aloud, at a conference at Columbia University, that Google would spawn not a classic "compulsory license" so much as a private deal for the benefit of a single company, thereby usurping the constitutional authority of Congress. Peters didn't put it just this way, but the settlement in effect attempts to exploit litigation, whose function is to redress victims of past infringement and damages, as an extension of the defendant's marketing and product-development arms -- and to co-opt the plaintiffs for that end. (Here Google Books is exactly like Freelance.)

But the funniest thing about the Google settlement may also be the most compelling argument for its doom. I get the distinct vibe that the higher-ups at Google themselves realize all these things and are not as invested as we might think in the settlement's current specifics. This is an enormous, cash-rich enterprise with an outsized vision, and they're experimenting with a lot of things simultaneously, trying to figure out what's going to stick and work. That is the real significance, I think, of Anita Bartholomew's discovery that authors can make better deals for themselves by opting out of the settlement and simply signing up for the Google Partners Program. Google will get you this way or that way. They're agnostic about copyright. They're more interested in taking over the world than they are in the takeover's terms of art.

No, the party most nervous about the shaky Google settlement isn't Google. It's the Authors Guild and its Authors Registry. The Guild stands to get tens of millions of dollars in capitalization -- taxicab money from the defendant's perspective -- in its quest to position itself as the most credible broker of future book-scanning rights. In order to get there, the Guild has tried to sell all of us down the river ... again.

And once again, it won't work.

Irv Muchnick

Brit Touts 'United Authors' Concept

British writer/blogger/tweeter David Hewson asks, "Is 'United Authors' the future of publishing?" Read Hewson's intriguing essay at http://davidhewson.typepad.com/blog/2009/04/united-authors-is-that-whats-really-needed.html.

Hewson's case for a publishing structure modeled after the "United Artists" of the early film industry is compelling but modest. After 15 years of reading futuristic bluster, I find a little humility refreshing. "Could it work?" he asks. "Hell, I'm a writer. What do I know? But, speaking as an ignoramus whose business experience amounts to once having been an executive director of a struggling and now disappeared small magazine company, the potential advantages, it seems to me, are many."

This much I know. The freelance settlement (whose objections I started) is in critical condition in the courts. The Google books settlement (from which I am opting out, while urging others to do the same) is getting flayed in the court of public opinion from a variety of perspectives. Links to examples are in recent posts here.

Meanwhile, all the big chickens of the digital age of publishing, after a decade of hiccups, are coming home to roost. Newspapers really are suffering commercial death by a thousand cuts. Though I personally haven't yet held a Kindle, I haven't heard anyone who has given it a bad review; clearly, the era of the e-book is at hand.

Like Mr. Hewson, I don't pretend to have the all right answers. But I do know that the freelance settlement has all the wrong ones, and I know that the Google deal has most of the same ones. Some day soon, somehow, writers will be able, at a minimum, to empower themselves somewhat in their relationships with publishers. Signing off on paradigms that give away rights by default is not the way to get from here to there. It is a way to give away the game before the game even begins. And it has to be stopped.

Irv Muchnick

Plugola Central: Bill O'Reilly And Me (At Beyond Chron)

"My Life of 'O'Reilly'": A Memoir

http://www.beyondchron.org/articles/My_Life_of_O_Reilly_A_Memoir_6825.html

Must-Read Article on Google Books Settlement by Pamela Samuelson

http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html

'Judge Posner Weighs in on Reed Elsevier v. Muchnick'

http://www.exclusiverights.net/2009/04/judge-posner-weighs-in-on-reed-elsevier-v-muchnic/

What Mass Google Books Settlement Author Opt-Outs Might Accomplish

I'm urging fellow authors to opt out of the Google book settlement, the latest sellout from the same people -- the Authors Guild and its Philadelphia-based class-action lawyer -- who brought us the freelance writers' UnSettlement, which is now before the United States Supreme Court.

Anita Bartholomew has blogged eloquently about why it is in the interests of authors to opt out of Google. Among other things, they can get better deals for themselves by working directly with Google -- and while retaining little things like copyright and control. If you haven't already done so, go over to Anita's blog, http://editorialconsultant.wordpress.com (whose focus, by the way, is not the settlement, but she couldn't resist sharing her considerable legal knowledge and business savvy).

Beyond protecting themselves, why should authors opt out? Because there's a chance that a critical mass of opt-outs also could scuttle the settlement. Here's the relevant language from the settlement agreement:

ARTICLE XVI — RIGHT TO TERMINATE AGREEMENT
Google, the Author Sub-Class, and the Publisher Sub-Class each will have the right but not the obligation to terminate this Settlement Agreement if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met. Any decision by Google, the Author Sub-Class or the Publisher Sub-Class to terminate this Settlement Agreement pursuant to this Article XVI (Right to Terminate Agreement) will be in accordance with the procedures set forth in the Supplemental Agreement Regarding Right to Terminate. The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffs and Google, and will not be filed with the Court except as provided therein.

Of course, we don't know the threshold of opt-outs that would trigger the rights of each of the parties to terminate. That number is secret.

Irv Muchnick

Here's What Participating in the Google Book Program Looks Like

Every once in a while I cross-post something on this blog about my own, non-Freelance Rights-related, writing. When I do so, I label the post "Plugola Central."

But now Anita Bartholomew has given me the opportunity to combine my two passions. Backed by homework, Anita has established not only that authors should opt out of the Google book settlement in the name of the greater good -- which I am recommending -- but also that they can get a better deal for themselves by just signing up directly with Google.

In case the whole subject remains mysterious to this blog's readers, I have decided, strictly as a public service of course, to offer an example: my 2007 book Wrestling Babylon: Piledriving Tales of Drugs, Sex, Death, and Scandal is at Google Books. Go to http://snipr.com/fvdmo.

There you will see the cover, the publisher's somewhat clunky synopsis, an online preview of portions, links to online retailers and libraries, and assorted arcane goodies. (My favorite is the map with pins of places mentioned in the book. For example, on page 60 I noted that Jesse "The Body" Ventura was the mayor of Brooklyn Park, Minnesota, before he ascended to the governorship.)

I had actually asked the publisher to send the PDF files of my book pages to Google for uploading. I did not (and honestly, still do not) know all the elements of the business model, but I will definitely work to educate myself before the publication later this year of my next book, Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. As Anita notes, for example, Google Books would have installed a direct link to my website PayPal button for direct orders to me of Wrestling Babylon.

I also see that Amazon has an automated ad for a direct click to buy Wrestling Babylon every time someone lands on the Google Books page for it. Man, I've got to get a piece of that action!

Irv Muchnick

Attention, Google Books Class Authors -- Opt Out And Make a Deal With Google!

Anita Bartholomew, the one-woman Google books settlement truth squad, has uncovered a doozy:

Where to get a better deal than the Google Settlement? From Google.

http://editorialconsultant.wordpress.com/2009/04/13/where-to-get-a-better-deal-than-the-google-settlement-from-google/


Anita concludes that if you want to make your books accessible on the web, via Google, you'd be smarter to opt out of the settlement and directly join the Google Books Partner Program. Your books will appear as they would if you had remained part of the settlement. "But this way, you keep all your rights. And you can even add a 'buy this book' button to the display page of your book if you offer the book for sale at your own site."

I'm trying t0 think through the implications of Anita's scoop. The Google Books Partner Program does post disclaimer language about the terms being subject to change without notice. So my guess is that if and when the settlement goes through, the terms for opt-outers might become less favorable. That is just speculation on my part.

What is not speculation is that Anita Bartholomew's reporting shows, yet again, that a class-action copyright settlement, negotiated by the Authors Guild supposedly on behalf of all writers, has turned on its head the concept of collecting damages for infringement. That's so boring ... so by-the-book.

This settlement, like the freelancers' UnSettlement, is at best only partly about collecting damages for infringement. The settlement is much more about the legal jiu-jitsu of turning a lawsuit against a corporation into that corporation's own marketing and product-development arm.

And I hate to be the one to break the news, but the law does not empower "class representatives" to do that. For good reason.

Irv Muchnick

Google and Freelance Settlements: 'License-by-Default' Vs. 'Compulsory License'

As noted in the post below, Anita Bartholomew quotes some powerful words on the Google book settlement from Marybeth Peters, the Register of Copyrights. Peters made the remarks at a recent conference at the Columbia University Law School. The video is viewable at http://media.law.columbia.edu/kernochan/kernochangoogle090313tape1t.html.

Let's focus on another point Peters made:

“If you look at this [Google book] settlement, in effect it’s a compulsory license for the benefit of one company.”

The operative phrase here is “for the benefit of one company,” and it's a problem with both the Google settlement and our freelance settlement, which is now at the Supreme Court under the name Reed Elsevier v. Muchnick.

Copyright litigation is supposed to redress a grievance -- damages for infringement -- which by definition is something that happened in the past.

In these overly ambitious global settlements, the defendants, whose illegal practices are ongoing, seek closure on their legal exposure by fashioning prospective rights management regimes, and the plaintiff "class representatives" are going along with them. Hence we get what the objectors have been attacking as the "license by default" in the freelance case. The same mechanism drives the Google settlement.

What these settlements are doing is unilaterally declaring a "compulsory license." Lawmakers sometimes mandate compulsory licenses to prevent those with control of certain intellectual property from having too much control over a market from which our culture would benefit overall from a freer flow. Music is the obvious example. You can turn on the radio and hear "Hey Jude" without the radio station having to track down Paul McCartney for permission. The station pays royalties to ASCAP based on audits of airplay of musical works.

Now imagine that only one radio station owner in the world had such a compulsory license. Whenever you wanted to hear music, you’d have to tune in to WWTF and, if you were out of range of that station or one of its affiliates, you’d be out of luck.

That’s the Google settlement’s effect on the vast majority of books. It creates a compulsory license that has the exact opposite effect of what compulsory licenses are meant to achieve.

A real compulsory license based on real comprehensive negotiations involving representatives of all the stakeholders (including librarians and other public-access advocates)? That would be a very good thing, and that is what I argue for. But that is manifestly what the freelance and Google deals do not have (notwithstanding the latter's royalty mechanism, which in itself is a step of improvement over the 0% royalty rights grab of our case).

As Register of Copyrights Marybeth Peters suggested, these deals are public legislation via private litigation. They are not legitimate.

Irv Muchnick

Register of Copyrights Questions Google Settlement

In the fourth and final part of her valuable series on the deeply flawed Google book settlement, Anita Bartholomew reports the reservations of Marybeth Peters, the U.S. Register of Copyrights:

http://editorialconsultant.wordpress.com/2009/04/13/the-register-of-copyrights-weighs-in-on-google-settlement/

Here's the money paragraph:

"The first point [Peters] made, and the one she returned to many times, is that she’s troubled by the use of class action lawsuits to grab future rights because they are, in essence, legislation via litigation."

Irv Muchnick

How to Opt Out of the Google Book Settlement

I just opted out myself. To join me, go to http://www.googlebooksettlement.com/r/enter_opt_out and fill out the form.

At the bottom of the form, you will need to decide whether to check the box marked

Submit to Google my request that Google not digitize the books identified above or, if Google has already digitized any or all of these books, that it not display material from the books, including snippets.

or the one marked

I request that Google contact me to discuss the books and Inserts identified above.

Below is the Google settlement site's answer to the question, "What happens to the books of authors and publishers who opt out of the settlement?" It is gobbledygook. I chose the second option, mostly because I want to see what happens next.


Irv Muchnick


***************

If an author or publisher opts out of the Settlement, the terms of the Settlement will not apply to this author or publisher. This means that the author or publisher is retaining all rights to bring a legal action against Google, for digitizing and displaying the author’s or publisher’s books and Inserts, and against the Participating Libraries, if desired. It also means that the Settlement neither authorizes Google to make certain uses of these books and Inserts nor does it prohibit Google from doing so. By checking a box on the opt out page, however, the author or publisher can request that the Settlement Administrator ask Google not to digitize (or, if already digitized, not to display any contents from) the books or Inserts identified in the opt out form, Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests, if the books or Inserts are individually specified, are in copyright, and the author or publisher has a valid and unchallenged copyright interest in their books and Inserts. Alternatively, if, notwithstanding the decision of an author or publisher to opt out of the Settlement, the author or publisher would like Google to contact them regarding Google’s use of their books or Inserts other than through the Settlement, the author or publisher can check a different box on the opt out page.

Google Book Settlement: Fellow Writers, Opt Out!

Your humble blogger finds himself tiptoeing, daintily, into the minefield of the Google book settlement.

I am a book author myself, so as they say, I do have a dog in the fight. I do not, however, have 11 years of experience from the ground floor, as I did in 2005 when I launched the objections to the freelance settlement, which now finds itself before the United States Supreme Court. Whether or not anyone else realized it or cared, I knew then, as I know now, that In re Freelance was a horrible deal for my fellow writers and for the public. And I acted on that knowledge.

The Google settlement, like Freelance, is largely the handiwork of the Authors Guild and its outside counsel, Michael Boni. Despite that rancid association, I have not made a snap judgment on Google. Some of my fellow Freelance objectors are mad at me because I even praised Google's promise of a royalty system, which is the missing ingredient of Freelance (and which, indeed, was recommended by the Supreme Court in the 2001 Tasini v. Times decision, which led to the consolidated Freelance litigation and settlement). At the same time, I noted that I had not read the hundreds of pages of fine print of Google, and I was not endorsing the overall settlement.

For obvious reasons, Google, from the get-go, had a much higher profile than Freelance. Now a lot of people who have earned my respect are saying, loudly and emphatically, that the Google deal is bad, or hasty, or both. Among these critics are prominent librarians and a consumer group.

Another is Anita Bartholomew, a fellow objector in Freelance. I again encourage readers of this blog to migrate to Anita's (http://editorialconsultant.wordpress.com) and read what she has to say about Google. It is thoughtful, well researched, compelling.

May 5 is the deadline for either objecting to or opting out of the Google settlement.

Objecting means that you are remaining in the class, hiring an attorney, and fighting the terms of the settlement. That is not my current position because, for one thing, I don't have time to fully educate myself and project absolute confidence, as I did in Freelance, that objecting is the very best move to make.

But I do have complete confidence in the tactic of opting out. Or maybe I should say, I believe that casting a "vote of no confidence" in the settlement sends the right message. At a minimum, this Google book train needs to be slowed down, and writers need to get themselves out of the class so as to preserve our ability to fight another day.

So I'm opting out, and if you're a book author, I'm urging you to do the same. If you'd like to join me in that effort, shoot an email over to google@muchnick.net.

Irv Muchnick

Check Out Part 2 of Anita Bartholomew on the Google Book Deal

Good stuff:

http://editorialconsultant.wordpress.com/2009/04/08/google-settlement-is-it-a-bum-deal-part-2/

Supreme Court Docket Update

Apr 6 2009	The time for respondent Muchnick, et al. within which to file their brief on the merits in support of reversal is extended to and including June 1, 2009.
Apr 6 2009	The time within which to file brief of amicus curiae in support of the judgment below is extended to and including July 31, 2009.
Apr 6 2009	Any amicus curiae briefs in support of reversal are to be filed on or before June 8, 2009.

Freelance Objector Anita Bartholomew on Google Book Settlement

The astute Anita Bartholomew, one of my co-objectors in the freelance settlement, is blogging a multi-part analysis of the flawed Google book settlement. Go to http://editorialconsultant.wordpress.com.

"There are too many problems with it to list in one post," Anita says dryly.

More Google Opposition

I was out of town and am just catching up to the April 4 New York Times story, "Google's Plan for Out-of-Print Books Is Challenged." It includes the observation that "a growing chorus is complaining" that the proposed settlement "is about to grant the company too much power over orphan works."

Google Settlement Intervention Underscores Freelance Objectors' Point

The advocacy group Consumer Watchdog is asking for Attorney General Eric Holder's intervention to delay the Google book settlement. See Publishers Weekly, "Consumer Group Protests Google Settlement," http://www.publishersweekly.com/article/CA6649670.html?nid=2286&source=link&rid=1433253538&.

The April 1 letter from Consumer Watchdog's John M. Simpson to the Justice Department says:

"Implementing such major changes in the way the publishing industry functions through a class action settlement is unprecedented. Normally Congress or regulatory bodies would be involved in a transformation of this magnitude and the interests of all stakeholders would be considered."

After you screen out the technical flaws of the freelance settlement, that is also precisely what is wrong with allowing the associational plaintiff writers' organizations and a handful of named plaintiffs to reshape the landscape of secondary rights management of newspaper, magazine, and journal articles. And I expect that to be part of the Supreme Court's calculus in Reed Elsevier v. Muchnick.

Supreme Court Appoints Advocate for Second Circuit's Position

Since both the petitioners and the respondents -- the settlement parties and the objectors -- agree that the Second Circuit Court of Appeals ruling on jurisdiction was wrong, the Supreme Court faced a situation in which there was no advocate for the other side of the question the justices agreed to hear.

The High Court now has solved that problem by appointing Deborah Jones Merritt, a professor at Ohio State University's Moritz College of Law, to brief and argue, as amicus curiae ("friend of the court"), on behalf of the Second Circuit's position.

Merritt's bio is at http://moritzlaw.osu.edu/faculty/bios.php?ID=38.

Stanford Supreme Court Litigation Clinic Enters the Fray

Charles Chalmers, the attorney for the respondents (settlement objectors), is being supported by the renowned Supreme Court Litigation Clinic at Stanford Law School. We very much appreciate the collective expertise of Professor Pam Karlan and the faculty, staff, and students of the clinic, the first of its kind.

For more information about the clinic's work, see http://www.law.stanford.edu/program/clinics/supremecourtlitigation/.