Friday, July 17, 2009

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


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.


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?
Not sure


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


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



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
Literary agent/manager
Not involved in book industry
Other, please specify

U.S. author.

8 Are you currently a member of the Authors Guild?


9 Did you support the filing of the initial lawsuits by publishers and the Authors Guild?
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.


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