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Lakeshore
An author of no particular popularity

Jay Lake
Date: 2009-03-18 09:52
Subject: [publishing] The banal evil of the Google copyright settlement
Security: Public
Tags:personal, publishing, writing
Google's motto famously is "Don't be evil." Yet the Google Book Settlement is nothing but evil, an assault on copyright so profound even the Mouse lawyers at Disney never thought to try such a broad rights grab.

In the simplest terms, the Authors Guild sued Google over their Google Book Search service, claiming copyright violation. Google has settled for an amount ranging between $60 and $300 per work. By comparison, statutory damages for willful infringement of copyright range up to $150,000 per work.

Now, as it happens, I'd be pleased to have my work inside the Google Books environment. I'm a big believer in electronic distribution and alternative publishing models, and I'm willing to tolerate the miniscule financial impact in return for the wider availability.

The problem isn't the fact of Google Books, or the level of the settlement. The problem is the conditions of the settlement.

I as the copyright holder am required to either opt-in to the settlement, and receive my payment, or opt-out of the settlement, and preserve my right to separately seek redress. My opt-in/opt-out claim must be postmarked by May 5, 2009, or I lose the ability to defend my copyright.

In other words, Google has asserted a license to my copyright without my prior consent, and further asserted that claim stands unless I proactively state otherwise.

This is theft.

This is no different from me deciding I can come to your house, use your lawnmower, borrow your car and cook on your grill, and then telling you that unless you tell me in writing by a certain date that I cannot use your property, my right to use your property stands.

My copyright is my property as surely as your car or computer are your property. I cannot assert use without your permission.

And the real problem here isn't Google's theft. They've agreed to compensate for it, and provided a mechanism.

The real problem, the evil here, is the notion now being put into practice that a copyright license can be asserted by a third party in the absence of the copyright holder specifically forbidding it.

All through modern copyright history until now, a licensor seeking a subright was required to negotiate with the copyright holder before exploiting that license. No differently from a tenant seeking to rent a property is required to negotiate with the landlord before they move in.

As of now, I no longer control the subrights to my copyright. Under the terms that Google and the Authors Guild have set up, anyone who wants to make a commercial use of them can do so. It's up to me to notice, to be aware, and to take steps to defend my copyright. If I don't, well, too bad for me.

And if you don't think Hollywood lawyers aren't already all over this, you're dreadfully naive.

This has the potential to radically change publishing in ways which are very unfriendly to content creators and copyright holders. Google has done an evil thing to copyright holders, something we may well all come to regret bitterly in the years to come.

Just to make matters worse, the position which seems to be emerging within the publishing industry is, "take the settlement and move on, Google's too big to fight, and at least you're getting paid."

That's bullshit. That's like giving away the entire store because the guy stealing the first few candybars is too big to fight. I don't know why every author in the country isn't suing Google for statutory damages, right know.

Actually, I do. They're one of the richest companies in the world. If I brought a suit against them, they would just lawyer me to death or bankruptcy. Google gets to change copyright law for all of us, just because they're too big to fight.

That's evil.

Larry and Sergey, if you're reading this, ask yourself if this is what you meant Google to be? And Eric Schmidt, you as well.

Google (in which I am a stockholder) has gone from being one of my most respected companies to just another Enron, another AIG, another Halliburton.

Corporate evil which is too big to fight.

Thanks, Google, for nothing.

Originally published at jlake.com.

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(no subject) - (Anonymous)
Wendy S. Delmater
User: safewrite
Date: 2009-03-18 21:30 (UTC)
Subject: (no subject)
Opt in sucks big pointy rocks in just about any situation. Not happy about this, no my prescisou, not at all.
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Rose Fox
User: rosefox
Date: 2009-03-18 18:01 (UTC)
Subject: (no subject)
Dude, I'd be suing the Author's Guild over this.
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Alyssa
User: aqeldroma
Date: 2009-03-18 23:45 (UTC)
Subject: (no subject)
See my point below! A lot of misinformation in this thread.
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Twilight: Daria
User: twilight2000
Date: 2009-03-18 18:05 (UTC)
Subject: (no subject)
Keyword:Daria
The real question is how the hell any author could *possibly* keep their hands on this and know when someone is making subrights claims.

You're right - no one of us can sue Google - but get to Disney's lawyers and show them how it will affect them negatively - or Pixar or any other major house - get *them* to sue Google.

And see about getting a congressional law passed to protect copyright again - making an end run around the damn Author's Guild. I know I'll be writing a couple of congressmen to see if they can get a law passed to protect copyright...
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Laura Anne Gilman: brain.  hurts.
User: suricattus
Date: 2009-03-18 18:09 (UTC)
Subject: (no subject)
Keyword:brain. hurts.
as you say, there's no way even a large band of authors can fight against this -- I'm not even sure another corporation could, at this point. Our sole hope is for legislature to reconsider the definition and role of copyright. I don't think we'll ever get it back to what was, but at the very least, our rights need to be better asserted and protected.

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Ken
User: ken_schneyer
Date: 2009-03-18 18:59 (UTC)
Subject: (no subject)
Very interesting. Since I'm not a member of the Author's Guild, I'm pretty sure that AG isn't my agent for any purposes, and that I am consequently not bound by any agreement they make. Nor can they claim to have represented me in any class action lawsuit, since I have not received class notification and been given the appropriate "opt-out" materials.

However, I think the argument that copyright is property is a bit overbroad. The Constitution gives Congress the authority to grant "exclusive rights for a limited time," which is not the same thing as conveying an inalienable property right. The first person even to suggest that it ought to be an inalienable property right was Mark Twain, some 100 years after the first copyright statute was enacted. To grant inanlienable rights would be significantly to reduce the ability to create new and derivative works, on which creativity depends.

Copyright as a concept is an artifact of the printing press, and needs to be scrapped in favor of a regime that reflects technological and creative reality. Personally I favor a "revenue right," in which authors would be entitled to any actual revenues generated by the use of their works, but would not have the power to use legal means to prevent non-revenue generating uses.

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Doctor Pipe
User: dr_pipe
Date: 2009-03-18 19:37 (UTC)
Subject: (no subject)
Seconded.
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S. Boyd Taylor
User: sboydtaylor
Date: 2009-03-18 19:03 (UTC)
Subject: (no subject)
Yeah, I was wondering -- did you sign up for the class action suit or what? How could the AG possibly be legally representing you if you didn't?
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S. Boyd Taylor
User: sboydtaylor
Date: 2009-03-18 19:07 (UTC)
Subject: (no subject)
Ahh. Nevermind. It was a class action, thereby denying you the rights of the class, correct?
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Menolly
User: nolly
Date: 2009-03-18 19:22 (UTC)
Subject: (no subject)
Wasn't the initial question one of whether Google's usage was fair use or a copyright violation? Was that actually decided, or are theye just doing the "we'll pay you to go away, without admitting wrongdoing" kind of settlement?
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Doctor Pipe
User: dr_pipe
Date: 2009-03-18 19:33 (UTC)
Subject: (no subject)
I'm not sure I can agree with all this... I'm not fully informed on it, but I was under the impression that there was a dispute about fair use here. If Google's contention is that their short excerpts are fair use, a contention I'm inclined to agree with barring further argument which might convince me otherwise, then there is no call for statutory damages. Taking the case to court would have established president determining if this is in fact fair use or not, and might have resulted in no payment at all if the court agreed that it was fair use. The settlement seems to mean that Google is paying some money to avoid the hassle.

I think you are worried that this establishes a system where you can never control what happens to your work unless you opt out of anything anyone might want to do with it. But it seems to me like this is a private settlement between two parties, that does not apply to any other copyright dispute. It's not setting president because it wasn't a court decision, it was an agreement between the parties. And the central question is not, "can anyone use my work without me specifically telling them not to?" It's, "is google's use a case of fair use?" Anyone can indeed use copyrighted work if it is fair use, and so if google's use if fair use than they were entirely within their rights. If it wasn't, then they weren't, and a court decision would most likely have required them to pay statutory damages.

In other words, I don't think this carries over to other stuff; if someone else or some other company wants to use your work, the same question remains: is it fair use? If it is, they can, just like always. If it isn't, they can't, and you can sue them if they try, just like always.

That's just my interpretation, maybe I'm wrong there. But I don't think it's so problematic. It's just like youtube, where stuff remains available unless the copyright holder requests it be taken down. It's just like any other situation where their is a contention of fair use; you use the stuff first, assuming you're legal. If the copyright holder disagrees, it's their job to tell you to stop. That is of course different from if they're reprinting the whole work and selling it or something like that, obviously not covered under fair use.

If you think my understanding of the situation is totally off I'd be happy to hear your take... It sounds like you don't consider it fair use, but do you disagree with me that the central question is whether or not it was fair use?
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User: lonfiction
Date: 2009-03-18 20:15 (UTC)
Subject: (no subject)
I have been wondering about the special circumstances around anthologies.

If an anthology shows up on Google Books, and the publisher did not claim electronic rights (or specify them succinctly enough to include GB), what is the legal standpoint of the authors of the individual stories? Should they not have the right to opt-in or opt-out, thus leaving GB with the possibility of anthologies full of holes?

Is there a good reference for special considerations regardling anthologies? Or is it just assumed that Publishers have the right to put their anthos up there, with GB never checking for electronic rights?
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Gary Emenitove
User: garyomaha
Date: 2009-03-18 21:13 (UTC)
Subject: Just to lighten things up a bit...
This is no different from me deciding I can come to your house, use your lawnmower

Feel free. The front yard grows the fastest.
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Wendy S. Delmater: A&A
User: safewrite
Date: 2009-03-18 21:28 (UTC)
Subject: (no subject)
Keyword:A&A
Well, shit. I'm looking into what this means for A&A. *grumbles*
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Mister Eclectic
User: howeird
Date: 2009-03-18 21:50 (UTC)
Subject: (no subject)
What am I missing here, Jay? Looking at Google Books, none of your books have a preview, the only information about them is what is on the dust covers. That's not a copyright violation. Thumbnail Images of the covers are there, but I'd call that Fair Use. Is there content which Google is exposing which I am not finding?
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Jay Lake
User: jaylake
Date: 2009-03-18 21:54 (UTC)
Subject: (no subject)
In my case, not yet. But they've scanned full text for a lot of authors under the same circumstances.

The issue isn't me being or not being in Google Books, it's the settlement affirming that unsolicited third party rights claims are valid. Copyright licensing is never an opt-out process.
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(no subject) - (Anonymous) Expand
Alyssa
User: aqeldroma
Date: 2009-03-18 23:44 (UTC)
Subject: (no subject)
I just attended this symposium, paneled by lawyers, AG reps, and agents/authors, going over a lot of the details of the agreement.

While I'm not a lawyer (so please don't quote me!), what you are describing is being an "orphan" book or work. There is protection in the document for them--Google does NOT by ANY means take the copyright for those works. What the deadline is for the signing up for potential $$ for Google's previous breakage of copyright. There is NO rights grab here. There was initially mass scanning on Google's part of 99% OOP titles, which led to the suit in the first place.

This was a civil suit, in much the same way as the "send in your info for the $2 you are owed as a credit card holder of Paypal from 2005 to 2008!" spam messages you get in your mailbox. That's what the $$ being offered is for, and in accordance to our laws, any potential suitors are given until a certain date to come forward. What's interesting is that there is no discussion of what happens to the funds if there are a lot more orphan works than they expect (does it go to the authors that came forward? It's unclear).

What you should be paying attention to is the creation of the searchable database of books that is being developed POST-agreement, as a side-effect of this agreement, which will use Google's search algorithms and will be made available to libraries. Which is huge, as there is nothing like it currently in existence. I would suggest you encourage your publisher to participate; odds are they are doing so already.
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Jay Lake
User: jaylake
Date: 2009-03-18 23:46 (UTC)
Subject: (no subject)
I can't go into details here, but I have been discussing this with my agent (and indirectly with my publisher), and they are very concerned about the rights going forward. For the reasons you discussed. It's not any prettier then, and my fundamental complaint about a third party assertion of rights seems to hold.
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the_bus
User: the_bus
Date: 2009-03-20 15:57 (UTC)
Subject: (no subject)
I'm not an author but this involves Google and rights, which automatically makes it interesting to a techie. When I checked the Author's Guild site you linked to, their How the Settlement Will Work document describes mechanisms that should protect you. Essentially, if I understand correctly, all in-print books require author and publisher consent, and Google does not have rights for new books.

If this is so, I fail to see how Google has fundamentally changed anything here.
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