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Lakeshore
An author of no particular popularity

Jay Lake
Date: 2009-08-31 19:22
Subject: [publishing] One last crack at the Google Books settlement
Security: Public
Tags:personal, publishing
One more shot at this. The Google Books settlement deadline is upon us. As it happens, I've been discussing this all day in various emails and blog comments. I thought I'd pull together my thoughts, one more time, as refined through the months that have passed since my last series of posts on this.

In as few words as possible, I think every copyright owner needs to strongly consider opting out.

First of all, I think the underlying goals of Google Books are laudable. Orphan works are an issue of both public access and cultural heritage, not to mention scholarly interest. Furthermore, I'd very much like my work to be accessible via a platform such as Google Books, consistent with my publishing contracts and rights permissions. If they'd asked me if I wanted to be a part if it, I'd have beaten a path to their door.

But they went the diametrically opposite direction from the entire history and structure of copyright law. The Google Books settlement enshrines a complete reversal of copyright control from the rights holder to the rights user, in their presumptive assertion of licensing rights absent the proactive objection of the copyright owner. Supporting the settlement puts every author in the position of being vulnerable to any larger player appropriating our copyrights, then arguing by precedent of the Google Books settlement, "well, you didn't object" — precisely the Google Books settlement argument.

This would open the door to unauthorized reprints with no redress, for example, and more to the point, Hollywood and gaming appropriation of copyrights without the author having a chance to negotiate or assert control of their own intellectual property. For deep pocketed companies, it will almost always be cheaper to litigate or settle after the fact than to license up front, given that the majority of authors won't have the wherewithal to pursue copyright cases against well-funded studio or corporate legal teams.

The underlying problem with the Google Books settlement is that a proposed copyright management regime optimized for dealing with orphan copyrights (where there may well be an argument to be made for presumptive assertion of a license) has been generalized to the entire universe of copyrights. This supports the interests of content consumers (access to copyrighted material) by betraying the interests of content creators (restructuring the fundamentals of the copyright licensing process).

Those who are urging opt-in are taking a stance of short-term expediency (some money is better than no money) over long-term principle. Unfortunately, in this case, the long-term issue is so high-risk that I don't see how any rational actor who expects to realize copyright income over the next decade or two can possibly support opting in.

I am not an attorney, this is not legal advice, but following is my understanding of the options. Note that I'm almost certainly wrong on some of the matters of fact here, but that's also a big part of the problem. This settlement is so cumbersome and so complex that even the attorneys who worked on it don't fully understand it. (I learned this in conversation with someone in a trade publishing house's legal department.)




Opt-in

Assert that you are a member of the covered class from the settlement. Waive your right to further redress. Agree with the settlement, participate in financial payouts from Google. Much of the agent-publisher side of industry is falling in on this option, for short term commercial reasons.




Opt-out

Assert that you are explicitly not a member of the covered class of the settlement. Preserve your right to further redress; for example, a more advantageous class action. No financial payouts from Google. Have more options to protect your copyrights.




No action

Under the terms of the settlement, if you fail to either opt-out or opt-in, Google Books by default acquires a subright to your copyright and continue to be able to feature your works, and you are presumptively included in the covered class, but without a payment method or assertion of ownership of your copyrights.

"No action" is the worst of both worlds, and also the truly pernicious part of the settlement, that in failing to respond you have agreed to the licensing terms. This is like me saying, well, you didn't say anything about me squatting in your vacation home, so now I'm a renter, and oh, I've decided it's worth $50 a month. Copyright has always been an opt-in process, not an opt-out process, with the copyright owner in control of the transaction. This is an absolute reversal.

If you think about it in terms of orphan works, their stance does make some sense. It's not purely piracy. But the net effect on working authors with active copyrights is a whole different kettle of fish. This settlement, however well-intentioned in its origins, is theft, pure and simple.




Parenthetically, I'll note that the opt-in process is heinously detailed and places extensive burdens of proof on you the copyright holder; for example to list precise page numbers on which your work appears in every edition of an anthology. Given my publication history, I'm looking at literally days, possible weeks of work, to document and defend copyrights that I already own without dispute. To return to the vacation home analogy, this is like the squatter and the police demanding that you show the title deed before any action can be taken to remove the illegal occupiers.

Will the settlement stand under litigation or judicial review or legislative action? Heck if I know. I sure hope not. But I do know that Google has deeper pockets than every author in the world put together, and good funding counts for a hell of a lot in both civil suits and in pursuing legislation.

Lacking the funds to do more, opt-out was the only sensible thing I could do without supporting the piracy either actively by opting in or tacitly by sitting it out. I strongly urge all copyright holders to do the same, and explicitly deny the legitimacy of this process.

Google has transitioned from "Don't be evil" to "Evil is as evil does". Let's not support them in this.

Originally published at jlake.com.

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Jay Lake
User: jaylake
Date: 2009-09-01 20:23 (UTC)
Subject: (no subject)
I may be misunderstanding the licensing terms, but I'm pretty sure I'm clear on the definition of "evil". In this context, "evil" means licensing my copyrights without prior permission. That's a bit of misdirected snark, methinks.

Your reading is interesting, and quite possibly more correct than mine, but my reading is quite widely held, which presumably means it's a fairly reasonable take. That much widespread confusion is a serious problem in its own right, without respect to which of us is correct on the merits.
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User: vee_ecks
Date: 2009-09-01 20:32 (UTC)
Subject: (no subject)
FWIW, I've been having to deal with IP law my whole career (and antitrust law, and banking regulations because I worked on a bunch of financial software, and international marketing and advertising laws because I've had to do localization, and...jeez, I shoulda been a lawyer) so I'm fairly knowledgeable on the subject. I will confess an early advantage: my uncle was a kinda famous IP lawyer.*

I think your take and the SFWA's is well-intentioned and thought out for the expectable level of legal knowledge in most fiction writers. I just don't think it's correct.

Ultimately, the suit was settled, time will tell. If I'm wrong...I'll fight the power with you. I don't think there's any big slippery slope, here, though.

I'm just kind of generally tired of "evil" being applied to companies that aren't Dow and don't blind babies and get away with it. It's irritating, and it pretty much seems to always be applied to whatever company Apple doesn't like at the moment.


--
*He was the engineering lead, for instance, on the suit Polaroid brought against Kodak that killed the Polaroid-ripped cameras they sold for a few years, almost thirty years ago. He also pioneered in Silicon Valley IP law, that's what got him the NYT obit.

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Jay Lake
User: jaylake
Date: 2009-09-01 20:52 (UTC)
Subject: (no subject)
Google is a company whose unofficial motto is "don't be evil." It's not an epithet I throw around much with any seriousness, but they've made it their standard, one which to my eyes (and the eyes of a lot of other people, including experienced counsel) has decidedly evil affects.

So, erm, tarring them with their own brush, here.
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User: vee_ecks
Date: 2009-09-01 21:04 (UTC)
Subject: (no subject)
No, I get it, it's just that I don't think this is evil. When Google actually does something evil, that's the time to turn their motto against them.

Again, one of us is going to be proven more right in the future, and I honestly hope it's me only because your take would suck.

It doesn't really fit with what Google does as a company, though. I'd be worried if MS or Apple or Amazon were doing this, and no wonder those companies are lining up to oppose the settlement.
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