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.

'Requiem for Black Oak Books' (full text from Beyond Chron)

[originally published at Beyond Chron on June 9, http://www.beyondchron.org/articles/Requiem_for_Black_Oak_Books_7010.html]

By Irvin Muchnick

Yet another venerable independent bookstore, Berkeley’s Black Oak Books, has closed its doors. This one hits home: in 2007 Black Oak kindly hosted the launch reading for my first book, Wrestling Babylon.

The demise of Black Oak, like that two years ago of another Berkeley institution, Cody’s Books, is sad. Yet I confess that I can’t bring myself to join the chorus of ritual condemnation of the new hegemony of Amazon.com. The reason is that, on balance, I believe online retailing is a very good thing for the vitality of diverse literary voices. My experience with Wrestling Babylon shows why.

That I landed a reading at Black Oak in the first place was a fluke. I happen to live two blocks away, and the manager of the reading series was a good friend of Josh Kornbluth, the comedic monologuist and local icon, who had just booked me for his interview show then running on KQED-TV.

That said, and with all due modesty, I also delivered big time on my end of the bargain. A crowd of around 100 people filled Black Oak the night of the reading (all right, I’m blessed with an extremely large extended family), and the 30 copies of Wrestling Babylon on hand there sold out. Not wanting to wait for resupply by the distributor, the store purchased another 30-copy batch directly from my author’s-discount inventory.

Here’s where we get to the moral of the story. The Black Oak shelvers proceeded to stack a quirky little book that had just generated a lot of on-site buzz on a table in the rear corner. One of the charms of Black Oak was always its haphazard organization – you might find Frank Kermode’s 1965 Bryn Mawr lecture series, The Sense of an Ending, on the “New Literature” table – but this was not charming. Only two or three more copies of Wrestling Babylon sold. The rest were returned.

Meanwhile, Amazon and other “virtual” retailers, for all their arrogance and impersonality, at least offer a universe of infinite space. As a result, Wrestling Babylon two years later still enjoys a nice backlist trickle, supported by mainstream coverage in such places as Forbes.com, the New York Post, the Jerusalem Post, and Scripps Newspapers, along with rave reviews by such major literary gatekeepers as the Sacramento News & Review, the Penn State Daily Collegian, and WorldWrestlingInsanity.com.

We average writers, or at least the few of us who aren’t delusional, don’t really expect our product to be pushed as hard as blockbuster bestsellers. But who among us shouldn’t cheer a new paradigm that at least gives everyone a fighting chance to get discovered?

The Black Oak folks had benign instincts and remained true to their atavistic roots. Don’t even get me started on Cody’s. As a parent and community member, I’d put a ton of volunteer energy into marketing an annual Cody’s benefit to raise money for local schools (while also driving traffic to the store and burnishing its brand). Yet when I published my own book, the people there wouldn’t give me the time of day. They were too busy booking name authors for their disastrously expanded upscale affiliates in locations like Berkeley’s Fourth Street and San Francisco’s Union Square (the latter was only a block or so from an existing Borders). Sorry, but I have no sympathy whatsoever for the argument that we must shed crocodile tears for independent booksellers who are so inept that they think the recipe for survival is to ape the same chains they decry.

To return to my basic theme, this is a time of transition and dislocation in belles lettres. Bookstores aren’t the only things changing. So are books. You better start swimmin’ or you’ll sink like a stone.

Irvin Muchnick’s CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death will be published in the fall. And, yes, pre-order info at http://benoitbook.com includes international Amazon links.

Feds Step Up Google Books Settlement Antitrust Investigation

Major media are reporting that the Justice Department has issued formal requests for information from parties involved in the Google Books class action settlement.

The New York Times calls this development "a sign that the government has stepped up its antitrust investigation" of the Google deal.

(Thanks to Anita Bartholomew and others.)

Copyright Registration Backlog

Did you know that the Copyright Office, while implementing a new system, has a backlog on issuing registration certificates that runs as long as 18 months? I didn't.

Here's the recent Washington Post story about it: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051803171.html?hpid=topnews. And see the blog "Exclusive Rights" (http://www.exclusiverights.net) for comment and analysis.

Again: Other countries don't even have a registration requirement. Also, in order to bring the U.S. into compliance with the international Berne Convention, the Copyright Act of 1976 softened previous registration requirements so that copyright inhered in creation of the work but the ability to sue depended on registration.

This is one of those practical reasons why the Second Circuit ruling in the Freelance case -- that unregistereds cannot even be part of a settlement class -- is unworkable. On grounds of judicial efficiency alone, I hope and expect the Supreme Court to see that issue differently.

'Reed Elsevier v. Muchnick' Briefing Process Exposes Settlement's Sham Arguments

Now that the briefs have been filed with the Supreme Court, there is so much more that the objectors know about the shady business of the freelance settlement that we didn't know before. In the future, this blog will develop that theme.

For now, some observations on what the objections have always been, and continue to be, about. With a timeout for thanks again to Pam Karlan and the Stanford Law School Supreme Court Litigation Clinic for their superb work in support of objectors' attorney Charles Chalmers.

From day one, the objectors' fight has been largely a fight on behalf of the holders of unregistered copyrights. Everyone agrees that 99 percent of freelancers are chronic unregistereds and that 99 percent of the class works of this case are unregistereds.

Our brief shows this. We are explicitly arguing, here in the Supreme Court, that the law does allow, and should be recognized as allowing, unregistereds to be legitimately in a settlement class without the "permission" of the defendants.

(I refer here, of course, to unregistered American works, as opposed to works originating in other countries where registration isn't required. The settlement automatically stuck all non-U.S. works in Category C, and that is an outrage in itself. The many many thousands of non-U.S. works appearing in the 26,000 publications in the settlement are, legally and morally, exactly the same as the higher-paying Category B. The settlement parties never attempted to jusify Category C treatment of non-U.S. works, except to say that registration was required to sue -- which is not true for the non-U.S. works. This justification was always a sham.)

One of our core Supreme Court arguments is something known as "supplemental jurisdiction." And here's the thing: This argument apparently has been known to the named plaintiffs and their counsel from day one. I say so because it was explicitly part of their original pleading in the complaint consolidating the several class-action cases filed in the summer of 2000.

Another of our arguments is the rule that in some cases -- and we think this is one -- when there is a precondition to a lawsuit, it only has to be met by the named plaintiffs, not the class members. Perhaps the plaintiffs or their counsel knew this one, too.

But one thing is clear. Knowing the first, and maybe knowing the second (or at least being in position to find it out), they instead simply gave these arguments away. They settled with the defendants as though that leverage didn't exist. The defendants weren't giving anyone anything by including the unregistered. They wanted and needed them, for two reasons.

First, the defendants wanted to keep databases intact, or so they said (all the while surreptitiously deleting material from databases and failing to disclose this to their paying customers in a full and timely fashion).

Second, the defendants wanted and needed the unregistereds because an unregistered can always register, and the defense group's pattern of relicensing from time to time meant that an unregistered could turn out to be a Category A (highest-level claim) for some new licensee offering a new slice of the database.

All the spin to the contrary, in which the settlement partner plaintiffs shamelessly colluded, was a double-sham atop a simple sham.

Settlement Website Still Has All the Scoops

With the petitioners' and respondents' Supreme Court merits briefs filed in Reed Elsevier v. Muchnick, your humble blogger decided to take a trip down memory lane by visiting http://copyrightclassaction.com, the settlement administration website of the case once known as In Re Literary Works in Electronic Databases Copyright Litigation.

The update there is misleading -- characteristically so. "On March 2, 2009, the U.S. Supreme Court granted the parties’ petition to review the 2d Circuit appeals court’s decision to overturn the settlement," we're told, accurately if incompletely. The announcement continues:

"This means that the Supreme Court will decide whether the appeals court correctly rejected the settlement or whether it erred in doing so. The good news is that the settlement may ultimately be upheld, and all claiming authors, including those of unregistered works, may still get paid. Unfortunately, this also means that it will take a while longer to learn once and for all whether those claims will be paid. Please review this site every few months for further updates. The case name before the Supreme Court is Reed Elvesier, et al., v. Muchnick, et al. (08-203)."

In other words, the administrator, Garden City Group, would have readers believe that a positive outcome at the Supreme Court might constitute final approval of the settlement. In fact, the Court is reviewing only the jurisdiction question that was the basis of the Second Circuit's decision to derail the settlement. If the Supreme Court reverses the Second Circuit, the case will go back to the Second Circuit for consideration of the substantive objections to the settlement.

Meanwhile, if you call Garden City's 800 number, you no longer get a long, chronological, concatenated spiel about the legalistic holdups. Instead, you're told to wait for the first available operator. After a couple of rounds of that, you're told to leave a message and someone will call you back.

Objectors' Merits Brief Filed

The Supreme Court merits brief of the objectors (Muchnick et al.) was filed yesterday and can be viewed at http://muchnick.net/scotusmeritsbrief.pdf.

The brief for petitioners Reed Elsevier et al. (the settlement defendants) is at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-103_Petitioner.pdf.

The brief for respondents Pogrebin et al. (the settlement named plaintiffs) is at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-103_PetitionerRespondentPogrebin.pdf.

Still to come: the amicus brief by the attorney appointed by the Supreme Court to advocate on behalf of the Second Circuit's decision on jurisdiction.

Yes, Sensei. Whatever You Say, Sensei.

For years I've been receiving by email a free monthly digest of technology law news called Bytes in Brief, published by a company called Sensei Enterprises.

So far as I know. the senseis at Sensei have never run an item about the objections to the proposed 2005 global class-action settlement for freelance writers. A scan of the 2009 issues of Bytes in Brief reveals that it has kept its perfect record intact by not sharing with its readers the fact that this case is now before the Supreme Court.

Where's the Karate Kid when you need him?