Friday, 29 January 2010

My reply to Larry Lessig on the proposed Google Books settlement

Yesterday was the deadline for filings with the Federal court considering the revised proposal for a settlement of the Google Books copyright infringement lawsuit, with objections submitted on behalf of groups of authors including the National Writers Union, American Society of Journalists and Authors, and Science Fiction and Fantasy Writers of America, Ursula K. Le Guin and 367 other individual authors, Canadian writers, academic authors, authors concerned with privacy, and many, many others.

Among the more significant recent commentaries on the settlement other than the court filings is a piece by Larry Lessig in the current issue of The New Republic. I posted a reply to Lessig in a comment on James Grimmelmann’s blog, which was noted in today’s Chronicle of Higher Education. Since it gets to the heart of some of the misunderstandings about the issue, it seems worth reposting here:

Lessig notes that under the original pre-settlement Google Books scheme, “If the work was still in print, then publishers could authorize Google to make available as much of the book (beyond the snippets) as the publishers wanted.” But he fails to consider whether the publishers actually had the right to “authorize” such uses.

Similarly, he continues, “Publishers were delighted to assure this simple and cheap marketing for published works (practically all had signed up for the service before Google announced Google Book Search).” But aside from the fact that while most large publishers signed up, uptake by the larger number of small publishers (who collective publish larger total numbers of books) was less, he again fails to consider whether the reason publishers were happy to sign up was that they had nothing to lose, since they didn’t, in most cases, own the electronic rights. By stealing and giving away to Google authors’ electronic rights, print publishers could promote sales of their print editions. They could care less if that would compete with or cannibalize authors’ independent efforts to monetize those authors’ electronic rights in their work.

Lessig’s fundamental error is to accept the purported alignment of the parties to the case as being “rightsholders (authors and print publishers) vs. Google”, when in fact the actual alignment of interests is “creators (writers, illustrators, etc.) vs. publishers/intermediaries (print publishers and Google)”.

As a result, he conflates authors and print publishers as “rightsholders”, consequently assuming them to have the same interests and assuming that all three terms (authors, publishers, and rightsholders) are interchangeable.

(This error is compounded by accepting the temptation to assume that “the Rightsholder” as used in the proposed settlement means the same thing as “the current holders of legal rights”, when in fact the settlement Rightsholder would be determined according to different substantive criteria and non-judicial procedures.)

For example, Lessig says that, “Under the settlement, Google would pay for the right to make up to 20 percent of copyrighted books whose author could not be found available to the public for free”. But in reality, it’s much more likely that the print publisher can’t be found (especially in the case of small publishers, and generally because they have gone out of business) than that the author can’t be found.

Even more clearly in error is his claim that, “Beyond 20 percent, the public could pay to access the full book, with the funds given over to a new non-profit charged with getting these royalties to the authors who want them.”

In fact, the proposed BRR would have no such charge to “authors”. Its duty would be to those determined under the settlement to be the Rightsholder, regardless of who currently holds the legal rights. And among those Rightsholders, even if they include some authors, the default in most cases would be for much, often all, of any money to be allocated to print publishers. There’s no guarantee that authors would receive a penny, much less that their share would be related to that to which they would currently be entitled at law.

Lessig’s puzzlement at authors’ objections derives from this same underlying confusion. He says that, “A system that channels money to authors is going to be liked much more than a system that does not.” That’s true, but the proposed settlement is a system that channels money mainly to print publishers, not authors.

Lessig goes on to reveal complete ignorance of authors’ existing efforts — the ones print publishers tried to suppress in Random House v. RosettaBooks — to get their work directly to readers in electronic forms. “Once the work passes out of print, it has become, from the author’s perspective at least, essentially free,” he claims.

That may be true for tenured, salaried academic authors, and commercially successful authors, like Lessig. More typical authors, whose books quickly go out of print in hardcopy, have much more incentive to take, and are taking, all sorts of initiatives (to their print publishers’ chagrin, when they notice) to license or self-publish their “out-of-print” books as e-books, post them on their Web sites to generate ad revenue, or sell them as PDF’s through authors’ own Web sites.

“When a used book gets sold, the author gets nothing”, he says. Not so: The referral fee I get from for sending a visitor there from my Web site to buy a used copy of my “out-of-print” book can be a significant fraction of what I got as a royalty on the initial sale of a new copy.

Lessig’s conflation of authors and print publishers blinds him to the conflicts between them, with the predictable result that much of his attack on authors’ “objections” is an argument with a straw man. In fact, the main objections from authors to the proposed settlement have not been to the (arguably fair use) snippet view by Google, but to the rights grab from authors by print publishers embodied in the proposed settlement’s definition of Rightsholder and in the allocation between authors and print publishers of revenue and control of the (almost unquestionably not fair use) future revenue models.

Sadly, that also blinds Lessig to the fundamental commonality of interest between authors, other creators, and readers (all of whom would both benefit from direct electronic distribution of written work from writer to reader, with its potential to provide more and cheaper access for readers and higher revenues to the authors who get only a tiny fraction of current spending on printed works) on one side, opposed on the other side by obstructive and unnecessarily costly would-be intermediaries in the form of both print and electronic publishers.

[Follow-ups: More of my comments from the discussion in Prof. Grimmelmann’s blog on the precedent set by Amazon and on Jonathan Band’s similar the straw-man arguments about “fair use” and authors’ objections to Google’s book scanning and the proposed settlement; my reply to Publishers’ Weekly’s latest overview of the case; and my breakdown of how e-book revenues are divided among authors, print publishers, and e-book distributors.]

[Futher follow-up on the disputes with over Kindle Edition e-book pricing, control, and revenue share: Readers’ interests lie with writers, not with publishers.]

Link | Posted by Edward on Friday, 29 January 2010, 15:26 ( 3:26 PM)
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