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Jay Lake
Date: 2009-04-24 18:33
Subject: [publishing] The Google Books settlement and your legislators
Security: Public
Tags:books, culture, publishing
Anent my post earlier today about the miserable thievery that is the Google Books settlement [ jlake.com | LiveJournal ], twilight2000 asked me via Twitter:
@jay_lake Is this the sort of thing that can be changed by new laws? Is getting our legislators involved a good idea?

My answer is, well, it's worth a shot, but probably not going to accomplish much. Here's why.

Two things move legislators. Money, and popular reaction.

The money is all on the Google side here. Overwhelmingly so. I am not implying Google has bought anybody off, merely saying that of the parties involved, only Google has the ability to swing meaningful weight through lobbying and campaign contributions.

Unfortunately, popular reaction is probably also on the Google side. What we're arguing about here isn't the indexing of the books per se. At least, I'm not. As someone said on an author's mailing list, if Google had come to us as authors and asked to do this on an opt-in basis, we'd have been falling all over ourselves to be included. What we're arguing about here is how copyright licenses are created, compensated and enforced. The Google Books settlement inverts the entire modern history of copyright, moving licensing from something controlled by the author (or other copyright holder) into something which can in effect be homesteaded by any entity large enough to not be concerned with individual lawsuits for copyright violation. Think movie studios, for example.

Most people don't know or care about that sort of thing. It's legal neepery of interest only to copyright holders and their publishers. What most people care about (if they care about this at all) is the ready access to a huge index of books, including many orphaned or out of print works. This is world-threatening to authors, agents and publishers, but it's a net benefit to most voters.

We can't swing money, and we can't swing public outrage. What are we left with? The biggest kid on the block playing bully, and all our agents and editors telling us we might as well take what we can get, because this can't be fought. And even though I support in principle what Google is trying to do here, the methods they've used, thanks to the Author's Guild and the settlement, are bullying, pure and simple, compounded by theft of copyright today and the potential for incalculable future economic damage to copyright holders.

Much as the Thor Power Tool decision had the unintended consequence of destroying publishing backlists for a generation, the Google Books Settlement has the distinct possibility of an unintended consequence of undermining or destroying author control of copyrights, and decimating the value of those copyrights.

And I don't see how our community can leverage legislators on this one, because we don't have money or popular appeal on our side. Advantage, the bully that is Google.

Do you agree with my analysis? Or am I mistaken?

Originally published at jlake.com.

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Laura Anne Gilman: madness toll
User: suricattus
Date: 2009-04-25 02:42 (UTC)
Subject: (no subject)
Keyword:madness toll
The best interested parties can hope for right now is that the challenges being issued against the agreement bring it to a standstill until the troubling details are worked out. Not ideal, but 'best' could equal a decade in legal tangles while the status quo remains. Educating people that the agreement is badly designed and seriously flawed can only help with that.
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Jay Lake
User: jaylake
Date: 2009-04-25 02:46 (UTC)
Subject: (no subject)
Hence my yammering, as pointless as it feels to me.
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User: mishaslair
Date: 2009-04-25 04:44 (UTC)
Subject: (no subject)
While authors aren't a powerful lobby on their own, what Google has done could arguably be extended to other forms of intellectual property. That could get parts of the business lobby motivated. That's one possible way to sway legislators -- convince businesses that profits on their own intellectual property (trademarks, for example) might be at stake.
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Ken
User: ken_schneyer
Date: 2009-04-26 06:18 (UTC)
Subject: (no subject)
Except that those cases have already been litigated, and the search engines lost.
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John
User: djonn
Date: 2009-04-25 07:02 (UTC)
Subject: (no subject)
Also, no few Congresscritters are authors. For that matter, I believe I recently read that a very healthy chunk of President Obama's income last year was derived from the books he's published. If one can persuade some of these policymaking authors that the Google "settlement" is against their personal interests, that might be leveraged into the development of better policy.
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Blue Tyson
User: bluetyson
Date: 2009-04-25 07:32 (UTC)
Subject: (no subject)
No, I agree you certainly won't have any public sympathy, given the recent decades of copyright holder robbing of the public.

Greater and cheaper access to knowledge is most definitely net benefit to the public, so we do want this sort of technology. Heaps of stuff rotting away in books that few people can get to. It is the one database of knowledge not being put to the use it could be.

So, your Analysis seems pretty sound, to me.

Although you can't much decimate copyrights economically that aren't worth anything in reality, which is a huge part of what they are doing.

Whatever Google does has main effect in the USA, though? (as far as this, not their search engine status)
Like authors, a smallish minority as far as the rest of the planet is concerned.

They certainly block some google books stuff outside there, now, I have noticed.
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User: dirkcjelli
Date: 2009-04-25 13:14 (UTC)
Subject: Copyright? I'm against it.
Live by the sword, die by the sword...
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User: (Anonymous)
Date: 2009-04-25 13:34 (UTC)
Subject: (no subject)
Well, copyright has always been unpopular. It makes things more expensive for consumers. Even life-saving drugs are protected by copyright laws. And yet these laws exist.

The music industry is fighting a completely unpopular battle against P2P downloading, something we all love, and although it's a losing battle, it does send some people to jail.

I really don't think we should just roll over and play dead.
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e_bourne
User: e_bourne
Date: 2009-04-25 18:43 (UTC)
Subject: (no subject)
Looks like I'm the dissenting voice. I think the legal issues are huge, massive in fact. It is hard for me to imagine the courts will give this an imprimatur and I can't help but wonder what the hell the Authors Guild was thinking. I am curious indeed how many amicus briefs have been filed alongside this, because there is so much (in what I've read so far) that is clearly improper and has such far-reaching long-term effects, that it is difficult for me to imagine this dropping with out a ripple.

Also, while we in the US have a (relatively) small reading population, people in other parts of the world read more than we do, and I would therefore think have more concern about this. That may be naive on my part. We are not the world; others are actually bigger readerships.

Fwiw, I do think letters to congress critters count. They always respond to me. I bet they'll respond to you. They do listen, so yes, deluge them. Why people insist on cutting their own balls off mystifies me. If you believe in something, fight for it! Don't go out with a whimper.

And last, if this does pass, seriously, do you think Amazon, Barnes and Noble, Borders, Powells, will let this rest? I would be gobstoppered indeed if the online booksellers weren't massing their own planned legal attacks if this passes, because this is an atom bomb at the very heart of their livelihood.
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Ken
User: ken_schneyer
Date: 2009-04-26 06:22 (UTC)
Subject: (no subject)
Amazon at least will fight it. They had planned on cornering this market for themselves.

From a legal standpoint I'd be concerned about the class-certification and fair representation issues. Members of the class who aren't properly notified can't be bound, and it could be argued that the owners of "orphaned" copyrights (since, by definition, they couldn't be contacted) aren't bound either.
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e_bourne
User: e_bourne
Date: 2009-04-26 17:44 (UTC)
Subject: (no subject)
They get around the "proper notification" issues by having this be an "opt out" class. Many large class action lawsuits go for opt out status because it's easier. In some instances, like credit cards defrauding on small amounts of interest, who knows where those people are anymore? Make it an opt out, and you've tried to notify them all. If you don't respond, you're in the class. If they can't find you, you're in the class. The responsibility to -not- be in the class shifts to the class member, not the notifier.

Undoubtedly they did this because of the status of "orphaned" books. This acknowledges the impossibility of finding those copyright holders, while at least trying.

Among the many things that concern me is when did this go: a) from being about orphans to the massive backlist of all books, including those still in pring, and b) not just restitution for the fait accompli taking, but permission to also sell future takings as well.

That's where I think someone should slap the lawyers of Authors Guild etc. upside the head. Especially authors' agents who are the ones who ought to be negotiating for their writers. Not a group of faceless lawyers.

Since my book is not yet published, I don't have a (personal) dog in this fight. Although you're welcome to wander over to my lj and see what I have to say about it.
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Ken
User: ken_schneyer
Date: 2009-04-26 06:17 (UTC)
Subject: (no subject)
Well, as I said before, the "modern history of copyright" claim is a bit hyperbolic. Depends, I suppose, on where you put the break-point for "modern." Fact is, author-exclusive rights are a comparatively new thing, and they are the direct result of the printing press; weren't no such animal before about 1550, and back then it was a right for printers only, not authors. One technological revolution creates one set of rights & duties, another destroys them.

But that isn't your central concern. Your central concern is that the Author's Guild negotiated a deal on your behalf, without your consent. It was able to do so because it was able to convince a court that it was a credible representative of authors. And who put it in that position? Its membership.

The way to prevent future events like this one -- I mean, future events where The Authors Guild acts like it has the authority to speak for authors as a whole -- is to delegitimize the Guild as a bargaining agent. If many authors are as outraged as you are, perhaps this won't be too hard.

The other error I see here is the notion of precedent. I don't know the sense in which you mean that word, but in a legal sense this isn't a "precedent" at all. It's a private settlement between the parties and has no binding effect on any other lawsuits. That is, if short-story writers sue Google (as, I gather, they still can), this agreement has no effect on that litigation -- except the psychological effect that Google will think it can do again what it did before. But if the authors don't settle, but go to the wall, the court will not feel bound by the previous settlement and possibly won't even take cognizance of it.
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A large duck
User: burger_eater
Date: 2009-04-26 18:50 (UTC)
Subject: (no subject)
Jay, I'm currently writing up a letter to the political figures recommended in the linked blog post. I'm also planning to write to my local NPR affiliate; the upcoming deadline might prompt them to cover the story this week.

May I have your permission to link to your blog posts, and suggest they contact you for the story? My book won't be coming out for five months, so I'm not directly involved.
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Jay Lake
User: jaylake
Date: 2009-04-26 19:14 (UTC)
Subject: (no subject)
Feel free to!
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A large duck: techno
User: burger_eater
Date: 2009-04-27 19:54 (UTC)
Subject: (no subject)
Keyword:techno
Done.
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