Thursday, April 23, 2009

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


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