Wednesday, 24 February 2010

Arguments for writers' rights at the Google Books settlement hearing

For those who don’t want to wade through the full 167-page transcript of last week’s hearing on the proposed settlement of the copyright infringement lawsuit against Google, here’s what was said on behalf of the National Writers Union and other allied writers’ organizations:

THE COURT [Judge Denny Chin, U.S. District Court for the Southern District of New York]: Now we will hear from Mr. Lazebnik.

MR. LAZEBNIK [Prof. Ron Lazebnik, Samuelson-Glushko Intellectual Property and Information Law Clinic, Fordham University School of Law]: Good morning, your Honor. My name is Ronald Lazebnik, and I am here on behalf of class members Science Fiction & Fantasy Writers of America, the American Society for Journalists and Authors, and the amicus National Writers Union.

Members of these organizations are typically authors who unlike the Authors Guild do not receive substantial advances from large publishers for their books but still rely on their writing as their primary source of income.

These writers have been very active in developing the growing and increasingly competitive markets for electronic rights which reduce or eliminate the need for publishers as intermediaries between writers and readers. This is the belief of the organizations that this proposed settlement — a lawsuit that was undertaken to defend writers in these new markets — has morphed into a business plan that harms them and endangers their rights.

We have many objections to the settlement. We would like to highlight for your Honor just one of the ways we think this settlement is unfair and unreasonable to authors.

The statistics related to the settlement provided by the parties last week are a little hard to analyze given that some of them don’t include headers of what the data is, but from what we can tell there is cause for concern.

As your Honor has heard, 1.1 million books have already been claimed. What is interesting though is that these 1.1 million books have been claimed by only 44,000 — approximately 44,000 different people. Clearly, the ratio indicates that the majority of the books being claimed right now are by publishers and not authors. What is more disconcerting, however, to my clients is that 620,000 of these books are considered out of print under the terms of the settlement. This means that the majority of the books being claimed for the proposed new electronic distribution system under the settlement are being claimed by publishers who no longer support the hard copy version of these books. This fact pattern demonstrates the exact reason why we believe the settlement is unfair and unreasonable to authors. It is allowing publishers to lay claim to rights and revenues that belong with authors.

The typical author has not forgotten about her out-of-print books. She may have excerpts on her website from which she earns money through advertising. She may sell printed remainder copies through her website or at readings. She may sell e-book downloads, or she may have licensed e-book editions of her book. These sources of incremental revenue may be critical to her ability to support a living from her writing.

As noted by many objectors in their submissions, including the United States, and even the Authors Guild website, the majority of publishing contracts of books at issue for this settlement probably do not include provisions related to electronic rights of books. After all, if you go back 20 years there was no reason for such a right to be considered most of the time.

As such, authors are the sole rights holders for e-books and other electronic distribution mechanisms for most of the millions of books subject to this proposed settlement. The settlement agreement, however, unnecessarily allows not only Google to profit from the electronic distribution rights of authors but also the publishers who have no claim to this right in the first place.

For books published before 1987, many of which in all likelihood do not have any provisions related to electronic rights, after Google takes its cut of profits the remaining profits get split between the author and the publisher despite no provision for this in the original contracts.

For more recent book contracts, regardless of what was negotiated between the author and the publisher at the time, the publisher now will receive 50 percent of the revenue. These revenues for the publishers are not being taken out of Google’s profit, your Honor, but rather out of the author’s much needed income.

In short, the settlement unreasonably allows publishers to simply lay claim to any book and puts the burden on the author to initiate proceedings to prove that she is in fact the sole rights holder.

For the author of short stories or poetry her situation may be even worse. She will receive at most a one-time fee for unlimited use in perpetuity even for a work that would normally command a separate fee for each appearance in each edition of an anthology. The publisher of an anthology in which one of her works appeared most likely, even if a publisher paid her for a limited time license for a single edition with the specified maximum print run, can authorize its display by Google regardless of her objections. That publisher and Google will receive all advertising revenue for the duration of her copyright. Her ability to generate revenue from licensing the electronic rights to her insert will have been effectively destroyed by its availability under the settlement.

The claims at issue in this case surrounded Google’s desire to display snippets of books online yet somehow the potential resolution of this case involves Google —

THE COURT: I am hearing that point over and over again.

MR. LAZEBNIK: Your Honor —

THE COURT: Why don’t you finish up.

MR. LAZEBNIK: Last sentence. Your Honor, this is simply an unfair and unjust resolution, and therefore we do not support this proposed agreement.

THE COURT: Thank you.

[The court seems to have been equally impatient with many of the speakers.]

More coverage and background about the GBS hearing:

Link | Posted by Edward on Wednesday, 24 February 2010, 16:23 ( 4:23 PM)
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