Tuesday, November 10, 2009

Royalties For All

While we wait four additional days for the unveiling of Google Books Settlement 2.0, a post by blogger Chris Bour takes me back, in a serious way, to my recent whimsical discovery that my first national magazine article ("The Game I'll Never Forget," by France Laux as told to Irv Muchnick, Baseball Digest, June 1970) is available on Google Books.

See "Browsing magazines in Google Books," http://chrisbourg.wordpress.com/2009/11/05/browsing-magazines-in-google-books/. (Thanks again to blogger-twitterer Eric Rumsey for the pointer.)

This area brings my work as an activist on this issue full circle. In 1994, I led a group of National Writers Union members in confronting a fledgling fax-on-demand article delivery service called UnCover, an affiliate of a for-profit spinoff of the Colorado Alliance of Research Libraries. UnCover became the first licensee of an even more fledgling collective licensing agency, called Publication Rights Clearinghouse, which I launched for the NWU during my period as its assistant director (1994-97).

In 1997 I left the NWU staff, mostly because Publication Rights Clearinghouse was going nowhere and because I felt UnCover, a dead-bang infringer that was supposed to be working with us to expand it, was instead blowing us off after milking its PR value. I became a copyright litigation consultant and packaged a case against UnCover, Ryan v. CARL, that settled in 2000 for $7.25 million.

And the rest is history.

Much more recently, with the Google Books settlement in suspense and with the Reed Elsevier v. Muchnick (or "Freelance") case at the Supreme Court on a technical jurisdictional question, I wrote to Attorney General Eric Holder to propose that the Justice Department, which had just intervened constructively in the Google case, now use its good offices to coordinate the Google and Freelance cases. The two cases involve the same root issue: the reuse, without permission or compensation, of previously published authors' works.

The news that Google Books has already begun moving seamlessly into magazine article retrieval just underscores that all this litigation, in the public-policy sense, is of one piece. And that a fair and equitable royalty system (which the Google Books settlement proposes but the Freelance settlement does not) is an obvious solution if it can overcome Constitutional hurdles. (I am among those who believe compulsory licenses are probably Congressional, not judicial, business.)

Meanwhile, all of you freelance magazine writers out there can follow the growth of Google Books for yourselves, and get as creeped out as I was when I learned that an obscure 39-year-old article of mine, written when I was 15, is already part of the system.


Anonymous Francis Hamit said...

Dear Irv:

I've already opted out of this so-called settlement. They had scanned in both my current novel and my MFA Thesis from the Iowa Writers Workshop despite a promise from the University of Iowa that creative thesis' would not be be put into electronic databases.

You will recall the proposal I made for a copyright small claims court in the September-October issue of the Columbia Journalism Review? It appeared in Britannica Online, despite the fact that I sold it to CJR on a first serial rights basis only. (They were not willing to pay for all rights). It was provided by EBSCO and will be taken down, but here we go again! Why should I have to police these databases? Especially when the article in question is about copyright and is titled "STOP THIEF!"

1:40 PM  
Anonymous Francis Hamit said...

Dear Irv:

To give the devil his due, Google Books can be a valuable research tool when you are looking for material in the Public Domain that is hard to find. Several years ago I paid a university library fifty dollars for a subscription so I could access a book that only they had. I felt ripped off, because libraries are supposed to be a "public good" and they get lots of taxpayer dollars at all levels to support their operations. I figured I was paying twice. Now I can find those rare 19th Century sources online from my home computer, for free. The problem is that the leadership at Google are a bunch of techies who have no real concept of the work required to create a book. Without copyright protection and royalties few can afford to do this. All of the rhetoric about the wonderful benefits of "free" notwithstanding, bills have to be paid. If Google had simply stopped with the Public Domain (1923 and before) then they would have saved everyone much grief over this issue. But, because it was easy to do, they decided they would take it all and wait for people to object. As for "orphan works" let me point out that there is a healthy market in used books where such needs can be fulfilled and that libraries already have leave under the Copyright Act to make up to three copies of rare books for customers.

12:46 PM  

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