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?