Google Books and writers' rights

Writers and publishers (including self-publishers) of “books” including out-of-print-books (and actually including many magazines, journals, chapbooks, ephemera, etc.), have until 4 September 2009 to decide what to do about a proposed settlement of multiple class-action copyright-infringment lawsuits brought against Google for scanning and distributing electronic copies of books without the permisison of the copyright holders.

For writers, the key thing to understand is that doing nothing about the proposed settlement is almost certainly the worst choice you can make. If you do nothing, and the proposed settlement is approved, you will give up some of your rights (some of them irrevocably), but you will get no money from the settlement.

Of necessity — not being able to afford a lawyer — I’ve spent many hours trying to understand the complications of the proposed settlement and its implications for writers. At the request of several people with whom I’ve shared some of my notes and analysis, I’m posting an article summarizing my personal take on the proposed settlement, as well as some links to other resources that I’ve found useful in trying to figure out what to do:

• Google Books and Writers Rights (my personal analysis of the proposed settlement, with an emphasis on the choices faced by writers)
• Interview with me on NPR’s ‘All Things Considered’ about the Google Books settlement
• Interview with me on KQED’s ‘Forum with Michael Krasny’ on the Google Books settlement
• Previous misconduct by authors’ lead lawyer Michael Boni
• My letter to the court opting out of the proposed Google Books settlement
• National Writers Union statement opposing the proposed settlement: HTML PDF
• National Writers Union statement announcing filing of objections
• Objections filed by the NWU, ASJA, and other authors
• National Writers Union Book Division
• Objections by author and attorney Scott E. Gant (quoting and including the NWU press release)
• Statement of the Science Fiction & Fantasy Writers of America (“The proposed settlement is fundamentally flawed and should be rejected by the court.”)
• Objections of the Science Fiction and Fantasy Writers of America (“The interests of authors are simply not aligned with those of publishers.”)
• American Society of Journalists and Authors
• Academic Author Objections to the Google Book Search Settlement
• Objections from the Japan P.E.N. Club (“the class members, especially those residing abroad, appear overwhelmingly opposed”; see also supporting declarations and other objections from other foreign writers)
• New Zealand Society of Authors’ Objection (PEN New Zealand)
• Electronic Frontier Foundation (if you want to sign on to EFF’s brief as an objector)
• ACLU letter-writing campaign to Google (not formal objections to the court)
• Electronic Privacy Information Center (focuses on privacy issues, but also a good overview with links to other sources)
• Open Book Alliance
• Official information from the settlement administrator (including PDF of the complete proposal)
• HTML version of the settlement text (easier to follow than the PDF, with comments and discussion)
• Documents filed with the court (unofficial collection via Justia.com)
• Responses, friend-of-the-court briefs, objections, and opt-outs (unofficial collection; note that only the small minority of opt-outs filed with the court rather than online or with the settlement administrator are listed)
• Library associations’ summary scorecard of filings with the court
• Authors Guild supports the proposed settlement
• Dear Judge Chin… this deal stinks. Please put an end to it…. I say that as a dues paying member of The Authors Guild. (by author Scott James, who writes under the pen name Kemble Scott)
• I am writing … to opt out (by Robert K. Massie, Pulitzer Prize winner and former president of the Authors Guild)
• Objections of Mark L. Levine (by an author, Authors Guild member, and book contract expert, explaining how the settlement would trigger adverse consequences for authors under existing author-publisher contracts)
• Objections of Giles Sandeman Sandeman-Allen (objections to allowing the settlement to override the rights ownership terms of foreign laws and author-publisher contracts)
• Google supports the proposed settlement
• I have opted out of Google, and I’m urging others to do the same (Irv Muchnick)
• Irv Muchnick blogs about Reed Elsevier v. Muchnick and the proposed Google Books settlement
• Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times (by Irv Muchnick)
• Writer Anita Bartholemew, objector in Reed Elsevier v. Muchnick, recommends writers opt out of Google settlement
• What you need to know about the Google settlement … and why you’re better off opting out
• Google Book Settlement and European Authors (Gillian Spraggs; also relevant to authors in the USA) HTML PDF
• Gillian Spraggs blogs about the proposed settlement
• Google Settlement Steals Rights and Rewards Appropriation (media prof. Robert G. Picard)
• Law prof. James Grimmelmann blogs aboout the proposed settlement
• Scrivener’s Error: Author’s Guild v. Google (author and lawyer C.E. Petit blogs about the proposed settlement)
• Scrivener’s Error: No Professional Courtesy Here (on the adequacy of representation — “plaintiffs’ counsel’s conduct has been downright disturbing” — and the conflict of interest between publishers and authors)
• Orphan Works and the Google Book Settlement: Part 1 Part 2 (Illustrators’ Partnership Orphan Works Blog)
• The Google Book Settlement’s accounting details are ugly, the default assumptions worse… (by literary agent and lawyer Lynn Chu)
• FAQ on the Google Book Settlement (by Lynn Chu)
• WritersReps.com (see right sidebar for more by Lynn Chu and others about the Google settlement)
• Video of panel about the proposed settlement with Google’s lead counsel Alexander Macgillivray (at the Computers, Freedom, and Privacy conference, June 2009)
• Audio of publishers’ panel about Google Books at BookExpoAmerica, May 2009 (I’ve also seen video of the session online somewhere — if you find the URL, please let me know)
• What others are saying about the proposed settlement (quotes collected by Gillian Spraggs)
• The long-term issue is so high-risk that I don’t see how any rational actor … can possibly support opting in (by author Jay Lake)
• Why I Opted Out Of The Google Books Settlement: Sorry, Google, this time you were evil (by author Serdar Yegulalp)
• Google-corp? Include me out (by author Sarah Sheard)
• Who’s Opting Out (opt-outs and objections compiled by Sarah Sheard)
• Opt-out Press Release: Canadian Writers Launch Internet Campaign to Oppose Google
• Canadian Authors debate whether to opt out (National Post quotes authors including Stuart Ross: “I didn’t opt out so I could sue. I opted out because getting $60 for each of my books, so that they could have unlimited use of the text, is a disgusting insult.”)
• Why I Opted Out (by author Don Merideth)
• This is a bad agreement with ramifications that will come back to haunt publishers and authors who fail to opt-out. (by author Walt Shiel)
• Google & the Library (by writer & publisher Karen Christensen, 2005)
• Grumpy Literary Agent’s comments on the Google Settlement (by Ashley Grayson)
• Our agency has advised our clients to opt out unless the author has a clear business and legal reason for opting in. (Ashley Grayson Literary Agency)
• My advice was to opt out of the settlement. (David Crotty, journal editor, in the Society for Scholarly Publishing blog)
• Why the Google settlement is anti-author (by Michael W. Perry, author and publisher)
• This settlement is copyright law rewritten in hell. (letter to the judge by Michael W. Perry)
• No one, not Google, not Santa Claus, should have this kind of leverage over the entire world of literature. It’s abominable. (by author, journalist, and blogger Cory Doctorow)
• If we let Google have its settlement we will all be the poorer. (by freelance journalist and BBC commentator Bill Thompson)
• Scrap Google book settlement and start fresh (by Chris O’Brien, San Jose Mercury news columnist)
• 180+ Japanese authors are opting out
• Objections of Shojiro Akashi (objections by an author who has made a criminal compliant against Google under Japanese law, and intends to appear pro se at the hearing)
• Objections of Jenny Darling & assoc. literary agency (“Electronic uses are not always slung into a contract as one bundle.”)
• Further objections of Jenny Darling & assoc. (Re: Prohibitive administrative costs for foreign rightsholders to make claims under the settlement.)
• I opted out (by author Victoria Strauss)
• Google Crunch Time (by author Nick Harkaway)
• Update: I Opted Out (Nick Harkaway)
• The Google Books deal has been postponed: good. But what we really need is copyright reform (by Nick Harkaway)
• Google has … jeopardized the future livelihoods of thousands of writers as we enter this age of eBooks. (by author Mike Cane, discussing the effect on author-publisher contracts)
• Opted out. Opted out…. Google settlement is a giant giveaway … and it’s clear that the Author’s Guild has behaved like a company-sweetheart union in the whole thing. (by author John Barnes)
• Thomson Reuters has opted out of the settlement on behalf of all of its subsidiaries. (includes the West legal publishing imprint)
• I object to the very principle of a Settlement any objection to which constitutes an agreement to be bound by its terms: a Catch-22 situation if ever there was one. (by author Michael Kincaid)\
• Objections by Susan J. Gordon (“I am a members of the … Authors Guild…. I have remained in the settle,ent because only in this way can my views be heard by the Court.”)
• Google kicked a hornets nest in Book Settlement… Google is its own worst enemy (by industry analyst Scott Cleland)
• Should an Author, or Author’s Heir, Opt Out of the Google Book Settlement? (by intellectual property lawyer Michael M. Ratoza, discussing some of the consequences potentially triggered by opting in)
• Opt-out of the Google settlement … or be bound to whatever terms they specify for your books! (by Angela Hoy; includes report of Google claiming it had the publisher’s permission, when the publisher didn’t own the e-rights)
• The economics of e-books (November 2003; my reaction to Google’s original plans, and why e-rights are worth more than print rights)
• Google joins infringement crowd; publishers object (my report on publishers’ initial complaints against Google, from American Writer , Fall 2005)
• Writing and Publishing (more from this category of my blog)

[Note: I’m a member of the National Writers Union, and was recently elected Co-Chair of the Book Division of the NWU. I encourage writers seeking more information about the Google Books lawsuit and proposed settlement, or Reed Elsevier v. Muchnick (the most important thing about which is that whatever the Supreme Court rules, the case is unlikely to be over), or interested in working with other writers and allies “to defend the rights and improve the economic and working conditions of all writers,” to join the NWU. Nothing I’ve posted here, however — except of course the NWU’s official statements which I’ve linked to — should be taken as representing the views of the NWU, the NWU Book Division, or anyone except myself or the authors of the specific linked articles. Finally, if you are interested specifically in travel writing — including the economics of trying to make a living from travel writing (my first advice: Don’t quit your day job!) — I’ve recently posted some travel writing resources I recommend. I’m continuing to update the link directory above as new items of interest cross my desk.]

[Update: Contrary to some erroneous reports (including on NPR’s “All Things Considered”), the opt-out deadline was not changed and was still Friday, 4 September 2009. The “second chance’ opt-out deadline for the revised settlement proposal is Thursday, 28 January 2010.]

[Further update: Revised proposal for a settlement of the Google Books copyright infringement lawsuit (13 November 2009)]

[Further update: Answers to Frequently Asked Questions about about the revised Google Book Search copyright infringement settlement proposal, from the National Writers Union]