Google Play and Lawyers Win?

Seven years is a long time in this digital age and much has happened since Google first attempted to land grab all the content, adopt the orphans and hoodwink the industry. Seven years of litigation, seven years of fat legal expenses and seven years which on reflection were sometimes sad as positions were taken and sometimes it appeared the industry was hell bent on a programme of civil war. It was somewhat inevitable it would be settled ‘out of court’ and behind those now richer lawyers’ doors and yesterday the Association of American Publishers (AAP) and Google announced a settlement agreement and the dismissal of their lawsuit.

The Authors Guild fights on and no doubt we may hear of a similar settlement in the future.

We don’t know the details of what has been agreed other than the high level statements which say much, but as ever are open to much interpretation. What is clear is that although the simpler and less contentious case of the publishers is resolved, the core issue of orphans remains unresolved and somewhat on the table. The settlement would appear to remain an ‘opt out’ not an ‘opt in’ model which is a clear win for Google and it is somewhat unclear what the terms are.

The question remains; who owns what and whether digital rights of books digitised by Google under its programme are actually all owned by the publishers, or assumed to be owned and aligned to the print rendition?

There is no mention of the rights registry, so the one positive the old settlement would have delivered appears to have disappeared with the will to continue the fight.

Following the agency debacle, this would appear to be the second attempt to derail Amazon that has expensively gone wrong. It would lead some to question the cost of litigation incurred and what has been achieved in return?

Related articles:

AAP Press Release

The Chronicle of Higher Education (with interesting quotes from James Grimmelmann)

FT: Google ebook win little treat to Amazon

The Great Book Bank Robbery - A Close Shave?

Remember Judge Chin and the Google Book Settlement? Well it appears that the judge has finally made his ruling and his answer is NO!

We obviously now need to draw breath and understand the ruling in detail and its implications on all parties and their positions moving forward. Having fought this madness from day one, we at least are relieved that the Great Book Bank Robbery has once more been foiled. Someone asked if we were happy at the result, our answer is one of cautious relief, but frustration it took so long, divided the industry and it is unclear whether we have really learnt how we nearly sold a lot for a little.

However, the Judge does leaves the door open for yet another revision, but will all parties continue to flog this near dead horse and make more lawyers rich. Will Google capitulate and bend further?

The challenge is, that without a continued case, some will say Google will be vindicated and continue business as usual. Others will say that the mess that we have today is a direct fault of pursing a case for a settlement and accepting one that was not found wanting once. but twice.

The ‘opt in’ Judge Chin states is a logical change, but may be one that is a bitter pill for Google to swallow, as it will certainly exclude the orphans and foil an audacious and ill conceived settlement attempt by some to sell what they didn’t own.

So where do the APA and Authors Guild now stand? Will they try once more to seek international approvals? Will they try to work with the EU’s initiative? Will all parties just soldier on and conjure up a third settlement at whatever price it takes?

The Authors Guild and APA need to ask why an industry that is all about rights trading has no rights registry. They now need to wake up and recognise the close shave we have all had and bring all parties together, create a registry for all that is not tied to any deal and importantly listen and learn from this episode.

To read the ruling

To read statement from Authors Guild

To read statement from APA

AFP wire covering Google's reaction

GBBR: How Not To Play Poker

So according to a blog posted at the Authors Guild, they claim the settlement was more about preventing digital piracy and defining fair use than copyright infringement. The Guild clearly disagrees with the US Justice Department's reading of the law. They state that they didn’t press the Google litigation through to the end because they view copyright litigation as being uncertain and feared that their view and opinion on fair use may not have prevailed.

They believe that if they had lost if would have been ‘open season on scanning of your out-of-print and in-print books’.

They ironically believe that if they had won the victory could have been ‘Pyrrhic in the digital age’. They feared that victory could put them in a similar position to the RIAA (the Recording Industry Association of America) who have won many hollow victories and may be losing the war. They also feared being outmanoeuvred by technology and pirates ever chasing the uncatchable.


Even before a settlement has been approved or rejected the Authors Guild have clearly shown their hand and why would Google budge an inch further? Who but the most naive would play such an open card in the middle of the game? In focusing all their efforts in trying to ‘harness’ Google, they could have left the door wide open to all. The only people who have benefitted in this sorry tale to date are the lawyers.

Le Guin Resigns From Authors Guild Over Google Settlement

An interesting letter from letter of resignation from Ursula K. Le Guin to the Authors Guild: 18 December 2009. Le Guin has received 5 Hugo awards and 6 Nebula awards, and was awarded the Gandalf Grand Master award in 1979 and the Science Fiction and Fantasy Writers of America Grand Master Award in 2003. She has received nineteen Locus Awards for her fiction, more than any other author. Her novel The Farthest Shore won the National Book Award for Children's Books in 1973.

To Whom it may concern at the Authors Guild:

I have been a member of the Authors Guild since 1972.

At no time during those thirty-seven years was I able to attend the functions, parties, and so forth offered by the Guild to members who happen to live on the other side of the continent. I have naturally resented this geographical discrimination, reflected also in the officership of the Guild, always almost all Easterners. But it was a petty gripe when I compared it to my gratitude to the Guild for the work you were doing in defending writers’ rights. I went on paying top dues and thought it worth it.

And now you have sold us down the river.

I am not going to rehearse any arguments pro and anti the “Google settlement.” You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.

So, after being a loyal if invisible member for so long, I am resigning from the Guild. I am, however, retaining membership in the National Writers Union and the Science Fiction and Fantasy Writers of America, both of which opposed the “Google settlement.” They don’t have your clout, but their judgment, I think, is sounder, and their courage greater.

Yours truly,

Ursula K. Le Guin
http://www.ursulakleguin.com/Note-AGResignation.html

Kindle Text to Speech Part 2 - The View From The Other Side

Technology is supposed to enhance the experience, convenience and introduce new features that aren’t available through the existing environment. However in our haste to secure, batten down content we have created a situation where some would say we have fewer rights than we do today and are restricted at every turn by those who want us to embrace the New World that they are shaping by their acts. Today we don't have the right to share the book, to resell it; to openly transfer it between devices and in the principle to give a ‘private performance’ of the book for non commercial is being limited by the Author Guild.

Much debate has taken place since Amazon introduced its Kindle 2 text to speech feature, the Authors Guild objected and the subsequent reposition by Amazon. Its interesting that authors appear to be far more engaged in this debate that that of the Authors Guild on the Google Book Search, but its also interesting to hear how rights are interrupted in an attempt to justify what some would argue is unjustifiable.

Jane Little in her blog makes the case ‘Why Amazon Was Wrong to Back Down from Authors Guild’. Courtneymilan in her blog makes an equally strong case in ‘read-aloud-now-with-bad-pictures’.

We recommend that they should be read by the Authors Guild, but somehow we doubt that they will.

Kindle Text to Speech - Make Your Own Mind Up

We came across two interesting articles which are worth reading about the Amazon text to Speech conflict with the Authors Guild. We believe the case is far from proven and the only winners will be the lawyers, the losers will be the consumers, the authors and those trying to move the industry into the 21st century in a sensible fashion and not follow the chaos of other media sectors.

First is an interview between the Guild’s Paul Aiken and Engadget, ‘The Engadget Interview: Paul Aiken, Executive Director of the Authors Guild’.

Second an essay posted in the NYT and written by the President of the Guild Roy Blount Jnr. ‘The Kindle Swindle?’

How we can differentiate between the Kindle as a dedicated book device and other electronic devices such as PCs that have text to speech as a feature, or the future smartphone, is highly questionable. When you change the typeset font, size, pagination, are you breaking rights? Does every file format need to be specified and rights against it agreed in advance? When I read a book on a PC and use text to speech is that ok? If I read a book out loud but through a microphone and amp is an infringement? Remember all the rights that the physical copy gives you today that the digital copy doesn’t.

What is fair use and is this about rights or money? If the later how will you determine the usage on a downloaded file? If you merely slap on a supplemental charge for a feature you may never use, can’t monitor and is accepted by all all poor file quality, is that what we call fair?

Some would suggest that this debate, like others, is based on emotion and not logic.

We will soon have kids wishing to grow up as rich lawyers when they grow up!

Amazon Back Off or Redrawing the Lines?

Last night we were once again on the Litopia After Dark panel and one of the interesting debates was on the subject of Amazon’s Kindle 2 text to speech feature. The authors Guild of America had taken a stand stating that this was a violation of copyright and Amazon disputed it.

This morning we woke to read Amazon had a agreed to make the Text to Speech feature optional on a per book basis. The company statement states: r

Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rights-holders will be more comfortable with the text-to-speech feature if they are in the driver's seat.

Therefore, we are modifying our systems so that rightsholders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title.

So we enter yet again into the murky waters of opt out and unproven case. Mind you having gone through the exercise with it on the Google settlement the Authors Guild must be getting used to treading these boards and once again the only winners are the lawyers

Send In The Clowns

There are many instances where text in whatever form is read or transformed into audio; Parents reading to children, teachers reading to students, reading groups sharing feelings, Jaws enabling the visually impaired to enjoy books. The recent announcement that the K2 has a feature to convert text to speech has certainly ignited a debate on the interpretation of audio. So when is book an audio book? When is alright to convert text to speech and when is it a breach of copyright?

We have previously written about the complexities of generating synthesised voice from text and although it is possible to achieve high quality it isn’t there today and there is a distinct difference between an actor or author rendition and a synthesised one.

The Author’s Guild has quite audibly suggested that Amazon’s use of text to speech may be a copyright violation. Are they right or wrong, or as many would scream, who cares? The objective of publishing is to publish, disseminate, spread the word and ensure due reference and royalty ensues.

Some would suggest that the Author’s Guild is afraid this new feature would cut into sales of audio books. Others would point out that Amazon owns the largest audio book seller Audible and so would be potentially cannibalising their own sales. Others again would argue that the feature would offer an audio option to many books that today don’t have one and frankly never will under the current audio production model. So logic would suggest that the feature and any subsequent refinement of it may well generate new audio revenues that are not currently enjoyed by many of the Guild’s membership.

In fact, it seems the stand of the Author’s Guild only serves to protect audio book publishers and increase litigation and lawyer’s revenues. Probably these may be the same lawyers who will profit from the Guild’s last stand, or as some would argue, capitulation to the other Gorillas – Google and the Book Search settlement. Well when you have taken one battle and think you have won perhaps the smell of the chase outstrips logic.

We hope Amazon.com will stand by their decision to include Text-to-speech features in the new Kindle.