Thursday, 11 February 2010
"Google will bring books back to life" (Not.)
Today Google and the Authors Guild (2 briefs) filed their briefs in support of court approval of its proposed settlement of the Google Books copyright infringement lawsuit, mirroring in legalese the arguments made in recent op-eds by Google and the Authors Guild in response to the objections to the proposed settlement from the U.S. Department of Justice and many others.
What should we make of these statements?
I'm pleased that the Department of Justice continues to oppose the proposed settlement, even with the cosmetic changes made by the parties to the original settlement proposal. I'm especially pleased that the DoJ has broadened its critique of the proposal to include key objections raised by the National Writers Union authors, to whose briefs the DoJ cites. Google's brief, by contrast, engages in lengthy straw-man arguments (as have other commentators such as Larry Lessig) with unnamed "objectors", but fails to cite or actually engage with any of the objections actually raised by authors, with the exception of those who objected solely on the grounds of the proposed settlement's lack of of any guarantee of readers' or writers' privacy with respect to Google's logs of who is reading exactly what pages of which books on Google's Web site. And the proponents of the proposed settlement continue to ignore, in describing the rights of "Rightsholders", the fact that the current holder of copyright, or of a specific right in a work would not necessarily be determined to be "the Rightsholder" for purposes of the settlement, under its different definitions, criteria, and decision-making procedures.
The parties to the settlement proposal, including both Google and the Authors Guild, continue to base their case on the claim that the settlement would "rescue" books that have been "abandoned" by publishers and for which there is now "no market". And they've tried to lump authors who oppose the settlement together with publishers as enemies of e-books (and, implicitly, as enemies of readers).
But it's print publishers, not authors, who have abandoned "out of print" books. It's print publishers who went to court (unsuccessfully) in Random House v. Rosetta Books to try to stop writers from making books that publishers were no longer printing available to the public again as e-books. And it's print publishers who have tried to force up the price to readers of e-books, even while keeping the lion's share of the revenues for themselves and not for authors.
Time and again, at events for writers at which I've spoken (you can hear them yourself on the audio archives), and from NWU members and other writers, I've heard from authors who are already pursuing the increasingly-competitive market opportunities to distribute their "out of print" books electronically: through authors' own websites, through direct sales of PDF's, or through licensing to e-book distributors. Many of the "out of print" books that are not "commercially available" -- as that concept is defined in the settlement to mean, in effect, "listed in the catalogs of major publishers or major distributors" -- are nonetheless commercially available, in one form or another, directly from their authors. These authors are outraged at Google's ignorance of author's ongoing leadership -- ahead of both print publishers and Google -- in decentralized, direct, electronic distribution, and Google's arrogance in assuming that any distribution channel not mediated by Google (for a cut of the revenue, of course) simply doesn't exist.
Therein lies the essential fallacy in Google's argument:
Those authors who have most strongly opposed the settlement have been those who are the strongest believers in electronic distribution.
For these writers, the settlement would mean not a new market but new artificially created competition for their rights and revenues from Google and publishers, structurally privileged by the settlement. At best, it would mean a complex new bureaucratic process for writers to claim their existing rights against the inevitable, if unfounded, counterclaims by publishers to control of electronic rights and revenues. At worse, it could mean loss of their rights in "one-strike-your-out" arbitration.
Disputes between authors and publishers about existing contracts and rights cannot be fairly resolved through a lawsuit against a third party, Google; through mandatory arbitration; or through the impostion of new and ambiguous definitions, correctly criticized by the DoJ, of who is "the Rightsholder" in cases where different rights -- print rights, electronic rights, and so forth -- have been licensed separately or on different terms. Authors shouldn't be deprived of their rights by inaction, on an "opt out" basis, especially when many of them have never heard of the settlement.
As the NWU said in its most recent statement on the case:
The problems cited by the DoJ cannot be rectified with "minor repairs" to a fundamentally flawed settlement. As the NWU and other writers' groups argued in court, and as the groundswell of opposition makes clear, the Authors Guild does not represent the interests of the class of authors that would be bound by the proposed settlement.
It's time for Google, the Authors Guild and the Association of American Publishers to withdraw the settlement proposal, invite a broader and more representative group of parties to the table, and start over. Any new settlement proposal must respect the inherent "opt-in" nature of copyright licensing and the terms of authors' current contracts and rights.
According to the latest filing (see pp. 37-38 of the PDF), 6800 authors and publishers have already opted out of the settlement entirely. That's a remarkable number, especially in light of the poor notice. It's even more remarkable in comparison to the number who made claims: 42,000 authors and publishers claimed 1.1 million works. That ratio suggests that most of the claims were bulk claims by publishers. And it means that for every six entities who made a claim, one opted out -- an extraordinarily high ratio for any class action. (More numbers on the claims and opt-outs are on page 5 of this PDF, and the list of authors and publishers who opted out is on pp. 19-78 of this document. There's a summary on the first page of this PDF, but the column heading are missing so it's hard to guess what it's supposed to mean.) More opt-out letters, particularly those mailed from overseas, will continue to arrive for weeks or months. Perhaps because of weather delays to postal deliveries in New York, some objections and opt-out letters posted by the 28 January deadline from as close as Toronto have yet to arrive at the courthouse. Most of the millions of affected writers clearly stayed away entirely, either by choice or because they never got, or didn't understand, the notice, or thought they weren't affected, or assumed they didn't need to do anything.
In more technical legal terms, perhaps the most problematic of the claims in the latest filings by proponents of the settlement are those in this declaration by Paul Aiken, executive director of the Authors Guild.
Aiken's declaration makes clear that the negotiations were based on the experience of the Authors Guild and the typical terms of its members' contracts -- which by the Authors Guild's own membership criteria (and as was noted in the briefs by other writers' organizations) are limited to contracts with large publishers that involve substantial advances. Those are, of course, hardly typical of the much larger numbers of authors published by more diverse small publishers, under much less standardized contracts.
Even more significantly, Aiken claims -- below the bold headline, "The Critical -- and Unending -- Right of Nonparticipation" (p. 7), that "At any time, under the settlement, an author can choose to deny Google the right to display the work.... We made sure that there would be no downside to an author to remain in the settlement... If at any time any author found any term to be disagreeable, the author could simply choose not to further participate in the settlement.... An author can at any time choose not to participate in the new markets and terminate any perceived harm."
These are the same claims Aiken made at the NWU information session for writers at which we both spoke in New York last month, and -- as Aiken himself says in his declaration -- what he and the Authors Guild have told thousands of other writers.
But none of this is true. In fact, the choices Aiken describes are available neither to "any" author nor at "any" time. Most of these choices are available only to an author who is determined, under the substantive definitions and decision-making procedures of the settlement (including mandatory binding "one strike you're out" arbitration) to be "the Rightsholder" for purposes of the settlement.
This requires that the author be found by the single arbitrator, under procedures yet to be determined and in the face of near-inevitable claims to the contrary by print publishers, to be the "exclusive" holder of the particular rights "implicated" by the uses of the work under the settlement (as among, typically, rights separated and differently allocated under at least three clauses of a typical author-publisher contract, any of which might be argued to be implicated and any of which might be argued to be non-exclusive).
As for the ability to "terminate any perceived harm", an author determined by an arbitrator not to be "the Rightsholder" or not to be entitled to the share of revenues to which they are entitled under their current contracts cannot, in fact, take action to terminate the harm, unless they opted out of the settlement by 27 January 2010. If they didn't opt opt, they have released their claims and given up their ability to enforce their copyright against Google, and have effectively released their claims against print publishers for copyright infringement and/or conversion of receipts owed to authors by "agreeing" by default that their only "remedy" against publishers for such actions will be through arbitration.
Authors who relied on Aiken's claims about what "any" author could do at "any" time could be in for a rude surprise when they find that, as a result of bogus claims by print publishers and an inequitable arbitration process, authors' own efforts to distribute their own work electronically face new competition by Google and print publishers, authorized by the settlement, revenue from which goes to Google and print publishers (but not to authors), and against which authors have no legal recourse.
Aiken's declaration is, in effect, sworn testimony as to exactly how, and to how great an extent, he and the Authors Guild have misrepresented the proposed settlement to affected writers. As such, it provides sufficient basis in itself for the court to reject the proposed settlement and the proposal for certification of the class. And since class counsel were aware of and tolerated this conduct -- as evidenced by their filing of Aiken's declaration -- it provides grounds to revoke their appointment as class counsel and reject their motion for an award of fees.Link | Posted by Edward on Thursday, 11 February 2010, 19:39 ( 7:39 PM)