Monday, November 16, 2009

Google Applies Lipstick to The Book Settlement

Well for most people Friday 13th came and went and left them unscathed.

Unfortunately, before the clock could strike midnight Google delivered its latest class action, no not blood on this fateful day, but lipstick on the their Book Settlement. They now obviously believe lipstick will hide the fact that their settlement deal with the AAP (Association of American Publishers) and the US Authors Guild still will fix a deal. The fact is that its just lipstick and the deal remains the same bad deal that was thrown out by many inside and outside the US courts.

Google is hoping to keep the deal alive with its new provisions; more flexibility to offer discounts on electronic books, undertakings to make it easier for others to resell access to a digital index of books covered in the settlement, increased control for copyright holders and extension to cover Creative Commons licence , but is it enough and is it merely dressing the pig?

The major shift is to widen the case to include other plaintiffs whilst narrowing it to drop those who had a clear case and would have probably derailed the deal. Some would argue that it’s easier to deal with the subsidiary companies in the UK, Canada, Australia, than take on the independent and powerful non English community. Some will say that we have already seen that the UK PA (Publishers Association) dithered for an age over the original deal and its hardly surprising, as we rarely see children take on their parents in public. However, the implications of all the plaintiffs now being covered by a US court deal is interesting and must be down to that 'special relationship' the UK has with the US.

Given the ring fencing to English works, will Google now stop scanning foreign non English works?

We will be looking more closely at the changes and drawing out the good, the bad and what remains the ugly in the revised deal. But the concessions made by the parties to what they defined as a perfect and well defended previous deal still fall around the emotive and divisive adoption of orphan works.

Dan Clancy, engineering director for Google Books, claims, 'the actual number of orphan works is small', but fails to define ‘small’. Others say that orphans are not worth much. Some even claim that the act of adoption, exclusive or not, is good for all.

We will now have a UWF, (unclaimed works fiduciary), which will ‘to the extent permitted by law’ licence to third parties. This ‘to the extent permitted by law’ is one of those phrases one hates as it could mean something different to many people and therefore nothing to anyone. Who actually owns the licence and rights to licence on unclaimed works?

Google appear today to remain the only game in town for the orphan works and will this clear stance on orphans get the backing of the Department of Justice, or be once again found unacceptable.

Rights Registry will now try to establish the ownership of orphans and have funds to do so. Some may argue that could mean that anyone can republish orphans with a suitable disclaimer. The basis being, is that if the Registry has made all responsible efforts and failed to establish right ownership, then the act has been done and orphans are fair game for all? If its good enough for the Rights Registry, then its good enough for everyone else?

The pricing issue continues to be a thorny one and down to whether you trust Google. The DOJ had raised concerns on potential price fixing. Under the revision, the Books Registry no longer has any say in the pricing of books and Google now is responsible for setting prices based on an algorithm developed based on market pricing. So have we taken a backward, forward or sideways step? The one thing that is clear is that pricing is now down to Google.

Our issue remains the orphans and why these can't be excluded, especially if they are so small, uneconomic and difficult to address?


j purdie said...

LOL, the BEST headline on this topic yet.

j purdie said...

I posted on the Bookseller about orphan works and if there was a definition of them in the settlement. The question 'what is the definition of orphan works?' seems to be the most important one. Does the settlement define an orphan work as purely a book that is out of print whose rights holders can't be located? If so out of print for how long, one year, ten, fifty?

I'll admit I haven't researched what an orphan work is by legal definition but I think Google are trying to take control of works that are - or could be - still in copyright, irrespective of the status of their authors, living or dead. If the settlement goes through that could create a legal precedence and authors may find that they have no say if they are published or not because their works will be legally deemed orphan. Or am I completely wrong?

Martyn Daniels said...

an orphan is a work that is out of print and whose owner can't be established. This may happen for several different reasons the common ones are; the publisher has ceased to exist, the author reverted their rights but can't be traced. The date is also important as copyright lasts 70 years after the death of the author so pre late 1920s is safe to be assumed to be public domian. The challenge exists between then and today with it getting mirky the further back you go as publishers have gone bust, traded lists and had records destroyed by events such as wars etc. There is an added complication in the US from when it came in line with others.

Trying to establish ownership is often very difficult unless the author or publisher is well known.

Th equestion of publisher records is an interesting one as say pre 1970 or later did they have computerised records of rights reversals. Will they do due dilegence to check on ownership or mass claim it and obviate the effort?

The fundemental right behind rights reversal is to allow an authgor to break free of a relationship that has run its course or failed and give the another opportunity. This latest land grab also enables publishers to gain rights in perpetuity and potentially keep the 'in print'.

The other issue is that most contracts pre say 1985 did not include digital rights but the current grab assumes them irrespective of contract.

Finally we must be wary of POD as this also enables th eteethering of rights in perpetuity and is also a licence under the GGB.

I apologise if this is a bit garblled and not clear but we are talking about rights.

j purdie said...

Thanks for the clarification Martyn, it's not (too) garbled. You're correct about it being a rights grab and even though it may never affect me I'm against Google doing this.

And I'm surprised publishers are going along with the settlement (the PA in the UK are reported to be happy with it) as it is as much about publishing rights as copyrights. Google could become the default online publisher through this much in the same way as Amazon is the default online retailer. And while Amazon has been good for the customer it has had its complaints from suppliers. Amazon is bad enough for some suppliers, think what it would be like if it had a legal settlement such as the one Google is chasing.

Theresa M. Moore said...

As a publisher I am concerned with the impact of the Google settlement on my current submissions to their preview program. To date the previews have yet to prove their worth, since I have seen no sales through the links, and I am wary of selling my books on Google for fear of losing all rights to them in the same manner as what many other publishers and authors fear. As such, I still control the rights to my books so I'll see Google in court if they don't contact me before offering them for sale. It's as simple as that.

Martyn Daniels said...

the settlement is an opt out not opt in one. Rights owners must opt out otherwise its in. This is one of those issues one hates as it places the onus on the individual to act and enables more to be sucked in by default.

The orphans don't get a choice they are merely adopted

j purdie said...

Not only is it an opt out Martyn but I believe publishers can't register to opt out any more.

Pete said...

"it places the onus on the individual to act and enables more to be sucked in by default."

Spot on. I'm particularly concerned about publishers and authors outside the US, many of whom will likely never hear about this theft of their works.