hello world
louis reyes rivera collated all this info on the google book deal, i havent waded thru it yet, clearly i need to do so - every writer needs to understand this deal - the deadline for opt in/opt out is this coming up friday the 4th, then my work belong to google by default apparently??? i need some clarity...... _________________
SPECIAL BULLETION
Collated and Edited by Louis Reyes Rivera
________________
Table of Contents
Part One: 1. All Writers –
Beware the Google Settlement: It's On You To Opt Out or Opt In
2. Overview of the Google Settlement
3. Important Dates for Settlement
Part Three: Addenda
(4) Google Settlement Report: NWU former President Gerard Colby
(5) What the Authors Guild Asserts:
Unlocking a Vast Archive of Out-of-Print Books:
An Outline of Google Book Settlement Benefits
(6) NWU Opposes Google Settlement
(7) Q&A from Author's Guild Web Site:
Should I Opt Out? Should I Fear Google? What about the Money?
(Answers about the Google Book Settlement)
(8)
Writers Balk at Google’s Proposed Book Deal by Edward Hasbrouck
(9) Lawyer and Author Adds His Objections
to Settling the Google Book Lawsuit
Part One: ___________________________________________ 1.
All Writers – Beware the Google Settlement: It's On You To Opt Out or Opt In
Between now and this coming Friday, September 4, 2009,
you must decide whether or not to opt in or opt out of the Google Settlement regarding both published books and articles.
Please
be advised that before you make your decision to Opt In on the proposed
settlement or Opt Out, read all of the materials herein included. These
articles have been garnered for your edification. While there is much
here to read, there is also much at stake for all writers, both PROs
and CONs.
In a nutshell, millions of copyright-protected books (whether
out-of-print or hard to access) have been downloaded and made available
by Google. Many of these books had been previously accessed only
through research libraries and “Special Collections” sections of
selective libraries or, in the case of alternative presses and
self-publishers, directly from the authors and small press publishers
themselves. The Google Book Settlement changes all that. The question
here is whether or not the settlement itself is in the interests of the
authors.
Interested parties may visit and/or google the following web
sites for more information: (i) National Writers Union (Boston Chapter)
at
office@nwuboston.org; (ii) Authors Guild web site; (iii)
Association of American Publishers web site; and/or (iv) google the topic:
Google Book Search Settlement Notice to Rights-holders... compiled by Louis Reyes Rivera _________________________________ ___________________________________________
2. Overview of the Google Settlement
In short, Google has been downloading millions of books and articles AND profiting from making them accessible for several years, but without permission from the respective authors, to the point where the Authors Guild and the American Association of Publishers joined in a class action suit [in 2005] against Google for copyright infringements. In October 2008, a settlement was reached between the plaintiffs and the respondents which affect all authors and publishers (including those who come through the alternative publishing world – writers and publishers who are NOT members of either of the organizations).
Among the issues at stake here is the setting of precedents that could very well lead to the eventual rewriting of all copyright protections.
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3. Important Dates for Settlement
Claim your Books and Inserts: You can do this at any time, but in order to be eligible for Cash Payments for Books, you must complete your Claim Form on or before January 5, 2010.
Opt Out of the Settlement: Your decision to opt out of the settlement must be submitted online or postmarked on or before September 4, 2009.
File an objection or notice of intent to appear at the Fairness Hearing: This must be postmarked on or before September 4, 2009.
___________________________________________ Part Three: Addenda ___________________________________________
(4) Google Settlement Report: NWU former President Gerard Colby
Report to the National Executive Board on the Settlement Reached
by Google, the Authors Guild, and the Association of American Publishers
with Respect to Google's Unauthorized Scanning of Copyrighted Books
By Jerry Colby, President
National Writers Union/UAW Local 1981
SUMMARY: On the surface, the Authors Guild’s recent proposed settlement with Google looks good, lauded by the president of the American Society of Journalists and Authors as a "win-win" for all concerned: While admitting no wrong, Google has agreed to pay at least $45 million to settle, at an average $65 a book, infringement claims by authors and publishers whose books were scanned by Google without the rightsholders' permission in order to launch its Google Library program for its search engines on the Internet.
More importantly, another $34.5 million will go to administrative costs to set up and run a Books Rights Registry for the purpose of clearing rights for the non-exclusive use of books in various ways. The Registry will, according to the settlement filed with the federal Court for the Southern District of New York, "maintain a database of Rightsholders, collect their contact information and information regarding their requests with respect to uses of Books and Inserts, and identify, locate and coordinate payments to Rightsholders. The Registry will represent the interests of the Rightsholders, both in connection with the Settlement as well as in other commercial arrangements, including with companies other than Google (subject to the express approval of the Rightsholders of the Books involved in such other commercial arrangements). All funds received by the Registry will be for the direct or indirect benefit of the Rightsholders. After the funding of its initial operations by Google’s payment, the Registry will be funded by taking an administrative fee as a percentage of revenues received from Google (estimated to be 10-20%). The Registry will be jointly managed by a Board comprising an equal number of representatives of the Author Sub-Class and Publisher Sub-Class – at least four author directors and at least four publisher directors. All decisions of the Board will require a majority of the directors, with such majority to include at least one author director and one publisher director."
In this way, millions of out-of-print books will become available for viewing at free portals at participating public and university libraries. Long forgotten books will be rescued for the marketplace and for researchers. Digital copies of books will be provided to their rightsholders for use on their websites, but you cannot use these digital versions for selling digital copies of your book without getting Google's permission first; after all, Google owns the illegal scans' copyright. Yes, ironically enough, Google recognizes the value of its own copyright, even if it does not recognize yours when it wants to scan your copyrighted book for its own commercial gain (through subscription fees, advertising fees, etc.).
If everything goes according to the lawyers' plan, Google will pay to have all potential rightsholders notified about the settlement in newspaper, magazines, radio and television, and websites on the Internet, using lists provided by the class counsel, i.e., the Authors Guild's hired Philadelphia law firm, Boni & Zack LLC of Bala Cynwyd, PA, (bookclaims@bonizack.com). Claims by rightsholders will be processed by the Google Book Search Settlement Administrator, Rust Consulting, Inc. of Minneapolis, MN, which will be hosting a website for the settlement. This process started on January 5, 2009, with a deadline for Op-Out (exercising your option to not be included in the settlement) and objectors' filings (only for those who do not opt out and remain as affected parties) set for May 5, 2009 [since then, changed to Sept. 4, 2009 -- ed.]. The settlement was recently given preliminary approval by the district court.
The Registry will essentially be the marketplace where a digitalized work, valued at a price set by the author or other rightsholder, may be exchanged for another virtual medium of worth or value: money. The prices are standardized into pricing bins ranging from $1.99 to $29.99. The rightsholder chooses a bin for each work as a test that you have struck a happy medium between a commodity overpriced and a commodity underpriced. Only the market will tell what is right, and Google advises there will always be adjustments in a work in progress.
Royalties Based on Net, not Gross (List Price) Income
. The devil, as ever, is in the details. So what’s the bottom-line split? The rights holders, whether author or publisher or both, get the lion’s share, 63% of net income from the sales of digitalized books or of licenses for limited use or fees paid to subscribe to a research service set up by Google or a third party licensed by Google. The 63% rate is across the board, applied to subscription fees, direct sales, PODs, etc. For authors who own and control all rights to their work, that 63% is a higher royalty rate than anything usually offered by publishers to authors from hard-copy book sales. Google gets the balance of income earned from the sale. At 37%, Google's rate is within the ballpark of what many booksellers get on consignment. In fact, most booksellers get more, 40%.
But here is the rub. By basing the rightsholder's royalty on net income, Google, now about to become the biggest bookseller in the world, is departing from the book industry's standard. Although many small publishers have succeeded in getting unwitting authors to agree to a royalty based on net income (promising advertising in return), the standard used by most of the industry's bellwether publishers is still the list price (the price the book is listed as selling for), i.e., gross income. Net income, on the other hand, means the author's share depends on what is left after the publisher recovers "Google's operating costs," which are set at 10%. While 10% is not as onerous as what some publishers take, it still shifts some of Google's cost of doing business from Google onto the rightsholder -- in other words, you, the author.
Is 10% fair? For publishers and booksellers, one of the biggest expenses is warehousing. This is all but eliminated in the Internet's virtual market. The only costs are the storage devices, the electricity to run them, the communication devices to handle sales automatically and, last and probably the least costly resource, humans to oversee it all. The real expense, of course, is the size of the project, and that is determined only by Google’s capital capacity to pursue its ambition to store the information of the universe. Technology’s advances will help, but none of this could get off the ground if Google was not allowed to raid the ports of knowledge – particularly libraries – like Captain Kidd. The libraries are swooning before Google’s advances like ladies in port. And they are not alone. Tempted by the prospects of actually getting money for the use of their books on the Internet, writers will surely follow the lead of the Authors Guild.
In Most Cases, Revenues Go Directly to Publishers, Not Authors
Here, there is a disturbing aspect in the settlement: no money is to be paid by Google directly to the writers when the rights are shared between the author and a publisher; all money in these cases must first pass through the publisher's hands. It smacks of the same method that the Copyright Clearance Center uses (and the Guild criticizes for its lack of transparency in paying title-specific royalties), relying on the publishers to send the money on to writers. How can we, the writers, keep track of these revenues?
But the settlement carries a high price in the world bigger than your individual bank account. Google's calculating the royalty to the author on the basis of net sales, rather than list price, and its arbitrary scanning of copyrighted books and making them available for viewing and sale will also create, through the sheer volume of transactions involved, a new industry standard to the detriment of writers’ traditional standards in the book industry. And although the settlement legally applies only to the United States and its possessions, Google obviously has its eye on the global market. Because of the global span of the Internet, the Registry is anticipated to have an international scope. Ergo, the choice for where the deal should first be paraded: the recent annual conference of the International Federation of Reproduction Organizations (IFRRO), of which the NWU, like the Guild, is a member.
To be fair, on the other side of the argument is the fact that this calculation of royalties on the basis of net sales has already become an unfortunate (for writers) widespread practice, and that even if such calculations reduce the income earned per book by a writer, the volume of sales through Google will likely more than make up the difference in income many times over. This anticipated income, along with the Registry as a means of bringing out-of-print books back into the marketplace and bringing some order to a chaotic international Internet market plagued by pirates stealing copyrighted works, are worthy practical goals sought by the Authors Guild, which the NWU has sought also.
Still Needed: A Writers-Controlled Registry
Former NWU President Jonathan Tasini had a similar dream: a central registry for copyright clearances and licenses of writers’ digitalized articles and books, controlled by writers. The new deal between Google and the Authors Guild and the Association of American Publishers is half of Tasini’s dream. What is missing is a writer-controlled registry. Instead, the deal replicates the ASCAP model used by songwriters and musical performers to collect fees and royalties for the use of their works. Like ASCAP, the proposed Books Rights Registry’s board will be controlled by an equal number of authors and corporate representatives. Who the authors’ representatives on the board will be, however, and how they will be selected or elected is left blank in the settlement. ASCAP has been criticized in the past for focusing so much on the interests of the big music makers that smaller artists are ignored. Will this be replicated in the settlement's proposed Registry?
Rather than an economic win-win, therefore, it would be more accurate to put the settlement in its political context: the Guild has pulled in its horns since first locking them with Google in September 2005 in federal court filings and in debate at the Fifth Avenue Public Library in New York. The Guild's then-president, Nick Taylor, had started the battle as a matter of principle against a “plain and brazen violation of copyright law.” His successor, however, Roy Blount, looked into the frozen hard stare of all-powerful Google the following May, blinked – and quickly approached Google to try to cut a deal. For the following two years of negotiations, Blount sincerely tried to bring tangible results from the Guild’s lawsuit, instead of mounting debts from years of costly litigation.
Creating A New Market For Out-Of-Print Books
The goal of these efforts was to establish a new marketplace for out-of-print books, not to replace the existing market for in-print books. (As a concession to the publishers, the rightsholders of in-print books must choose to opt-in to be included in the Books Rights Registry.) This new market for out-of-print books was achieved through Google's agreement to pay for the setting up of the non-profit registry. The deal, however, doesn’t change Google's crime against copyright law into a virtue. Copyright law still stands, if wobbly. But in reality, the deal not only lets Google off the hook for violating copyright law; it enshrines the crime within the edifice of a golden promise: writers sipping complacently at small pools of cash created by the huge river of money rushing through the Internet from its creative source (the writer) to its final consumer (the “end user”).
The legal principle spelled out in the Constitution's giving authors and inventors exclusive rights to the use of their creations has been violated by Google's refusal to first get permission from the rightsholder before making copies of a book for use in its commercial ventures. True, most booksellers don’t get the permission of the author, at least not directly, before making a book available for browsing by potential buyers or for selling the book. But they do get the legal permission indirectly by ordering the book through the author's publisher or the distributor contracted by the publisher, and the publisher is only able to do this legally by signing a contract with the author or the author’s authorized agent.
For what, then, is loose change to Google, the goliath gets to have its way for past infringements from its illegal scanning of millions of copyrighted books. In fact, through this class action settlement, once it is given final approval by the federal court in New York’s Southern District, Google’s scanning without the rightsholders’ consent will, despite disclaimers, becomes a new industry standard through the default inclusion of every member of the affected class unless he or she opts out. The key to this qualitative change in industry standard is that the settlement defines the class members affected as the rightsholders of every book in the world. While it is true that all class action settlements under U.S. law affect all members of a designated class unless they opt out, it is also obvious that Google is using this class action settlement to extend “license by default” to all books in the world.
In practice, therefore, the settlement still stands copyright law on its head by putting the onus of notice against permission to scan (copy) on every single copyright owner, rather than on those like Google who want to use works they do not own for their own commercial gain. Who cares if a copyrighted out-of-print book is scanned by Google, is made entirely viewable on the Internet for a fee without the owner’s explicit permission, and is sold as long as this brings the authors some badly needed income in these hard times? Today, authors are daily getting ripped off by pirates on the Internet. Now at least a system is being created whereby authors can get access to the Internet's vast revenue flows.
Who cares if Google gets an even bigger share of the digital marketplace? Apparently, the German booksellers and publishers association, the Boersenverein, does. The Boersenverein funds a pay-for-use book-scanning service called Libreka for German-language books. On October 30, 2008, the German association released a statement in which they branded the settlement as "a Trojan Horse" that would effect Google's "creeping takeover" of the world's electronic book market and an American cultural hegemony. "Google aims to achieve worldwide control of knowledge and culture," said Boersenverein's chief executive, Alexander Skipis. "In the name of cultural diversity, this American model is out of the question for Europe," The settlement, he said, contradicts "the European ideal of diversity through competition." But the smaller German publishers and booksellers of Boersenverein do have competition -- from within their own national borders. The Association of American Publishers' chairman is Richard Sarnoff. Sarnoff, who praised the settlement he helped oversee, is co-chairman of Germany's largest publishing and media corporation, Bertelsmann Inc., which owns the U.S.'s largest publisher, Random House (one of the first publishers to introduce the all-rights contract).
Who cares if Google guts copyright law in practice, while singing praises to it in press releases? Despite the bitter financial lessons of the stock market and predatory lending by financial companies, the illusion goes on that we can all benefit by surrendering enforcement of legal rights to corporations so they can get bigger and more powerful and grab a bigger pie that we all supposedly might share. Some illusions die hard. Most people just have to learn the hard way. A penny for your thoughts? Or for your copyright?
Oh, by the way, the settlement crafted by the lawyers gives them $30 million.
RECOMMENDATION: A settlement is a way of resolving an issue without the parties having to take the issue before a fact finder (judge or jury) for resolution. It does not per se establish a legal precedent. In fact, the wording of this settlement emphasizes that the Copyright Act must be adhered to, requires Google to pay an amount to infringed authors which, while token, is still supporting the Act's principle about gaining permission from the rightsholder, and the settlement establishes a central database registry for which we in the NWU have been calling for years.
In balancing the problems and merits of this settlement, the registry carries much weight: it becomes an institutionalized means by which such unauthorized copying by major business interests can become a thing of the past -- if it is used. In other words, the settlement brings with it, in establishing a central Books Rights Registry ruled by a board half composed of writers, the possibility of a practical solution and cost-effective alternative to corporate piracy of copyrighted works on the Internet.
Our real concern is with changes in industry standards that impact negatively on our members. Weighing the costs against the benefits to writers, I recommend, therefore, that it be the National Writers Union's official position that we are not opposed to our members and other authors participating in the settlement, since it makes no legal concession to Google with respect to copyright law, despite the defendant's typical claim in a settlement not to have done anything wrong. At the same time, it authorizes Google to use copyrighted works on a non-exclusive basis. While this frees our members to sell their works elsewhere, we should have no illusion about the difficulty of competing with Google in the marketplace.
Finally, the NWU must 1) press upon the parties, and particularly the Authors Guild, to address our concerns about the increasing power of conglomerates in publishing and Internet book sales and the resultant deteriorating industry standards for authors, and 2) press upon other infringing companies to immediately cease their violations of federal copyright law and come into compliance with it by participating in the new Books Rights Registry.
The official settlement website is: http://books.google.com/booksrightsholders/
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(5) What the Authors Guild Asserts:
Unlocking a Vast Archive of Out-of-Print Books:
An Outline of Google Book Settlement Benefits
June 24, 2009. Millions of copyright-protected books are out of print and largely out of reach, available only through the largest research libraries in the country. The Google Book Settlement announced in October 2008 – the result of 30 months of negotiations between and among authors, publishers, university libraries and Google – changes all that, working a revolution in the access to knowledge. If approved by the court, the settlement will:
Provide readers and researchers with access to millions of out-of-print books, many of which are currently difficult or impossible for readers to obtain, in a searchable online database.
Turn every public library building in the U.S. into a world-class research facility by providing free access to the online portal of out-of-print books.
Permit any college or university in the U.S. to subscribe to the same rich database of out-of-print books.
Give new commercial life to millions of books, while protecting the economic rights of authors and publishers.
Benefits for Readers and Researchers
The settlement unlocks a vast archive of out-of-print books, providing readers and researchers with far greater access to books
than ever before.
Access at your public library.
The settlement turns every library into a world-class research facility, by offering every public library building in the U.S. – all 16,500 of them – a free online portal to millions of out-of-print books.
Access at colleges and universities.
The settlement offers students and teachers in even the smallest and most remote American colleges and universities access, through institutional subscriptions, to millions of books previously available only in the largest academic libraries in the country. Faculty members and students will be able to tap into this library from their offices and dorm rooms.
Access at your computer.
Anyone online in the U.S. will have free "preview" access to hundreds of millions of pages of text (up to 20% of each book). Review hundreds of accounts of the Battle of Vicksburg, or of the beginnings of the Industrial Revolution, or of the sources and interpretation of Moby Dick, at no charge. Find one book particularly compelling? Buy access to the entire book. Access to public domain books is free, of course, and authors controlling the rights to their books can choose to give away access for free.
This is just the beginning for readers and researchers. Technology is moving ahead quickly in the publishing industry. E-books are beginning to find a genuine market, for example, and on-demand publishing is entering its next phase as a machine scaled and priced to fit in many bookstores is now available. Since all of Google's uses of books under the settlement will be non-exclusive, rightsholders and the Book Rights Registry will be free to take advantage of such innovations and make out-of-print books available again to readers through new channels as they arise. Book publishing's "long tail" – the list of books that are viable in the competitive market through the use of new technologies – is poised to grow by an order of magnitude.
II. Benefits for Authors and Publishers
Out-of-print books have value, but that value is lost to the market and to authors and publishers. The settlement breathes new commercial life into out-of-print books, while leaving the existing market for in-print books alone.
Find new readers. Out-of-print books need no longer be relegated to the used book market. The settlement will make out-of-print works available to hundreds of millions of readers, through ad-supported previews, sales of online editions, and institutional subscriptions. If a book catches on, there will be sales data to prove it, which may create an opportunity to bring the work back into print in traditional form.
In-print books are unaffected. A cardinal rule in the negotiations was not to disturb the market for in-print books. Titles that are in print won't be made available through any of the means described in the settlement, unless the author and publisher expressly want them to be.
A Book Rights Registry to protect rightsholders. A non-profit registry governed by authors and publishers will oversee the settlement on their behalf, to help make sure rightsholders receive the benefits they're entitled to. (Sign up for the Registry by filing a claim at googlebooksettlement.com.)
A fair share of revenues. 63% of gross revenues go to authors and publishers; Google keeps 37%. Funds will be paid to the Book Rights Registry, which will pay authors and publishers after retaining a modest administrative fee. If rights have reverted to authors, they will receive 100% of the rightsholder revenue.
Unprecedented control for authors and publishers. Authors and publishers will manage their rights through an account management page at the Book Rights Registry. Authors who control rights to their works, for example, may choose to allow Google to display ad-supported previews of books, sell online editions (authors may set the price or let an algorithm do it for them), and license the work to colleges and universities, or they may choose to block all display uses. Authors can change their minds, at any time, with reasonable notice. What if a book comes back into traditional print? The rightsholder can then simply turn off all display uses, if it chooses, and permit the publisher to sell the work through standard retail outlets.
Authors' estates, too. Authors' estates exercise the same rights as authors.
At least $45 million in payments for unauthorized scanning. Any of Google's digitizing of in-copyright books done before May 5, 2009 is considered unauthorized under the settlement. Google will pay to obtain a release of these copyright infringement claims. Under the settlement, Google will pay at least $60 and as much as $300 to rightsholders for each book that it scanned without authority, for a total payment to rightsholders of at least $45 million.
This is just the beginning for authors and publishers. Since all of Google's uses of books under the settlement will be non-exclusive, rightsholders and the Book Rights Registry will be free to innovate and find other ways to make books available to readers. Book publishing's "long tail" – the list of books that are viable in the competitive market through the use of new technologies – is poised to grow by an order of magnitude.
Here's the math: we expect the settlement to make at least 10 million out-of-print books available, which, at an average of 300 pages per book, represents at least 3 billion pages of professionally written, professionally edited text. 20% of that is 600 million pages of text available at every desktop computer in the U.S. as a free preview. (For comparison, Encyclopedia Britannica is about 44,000 pages in print form; Wikipedia's featured articles total about 5,000 pages. All English Wikipedia articles, including stubs, total perhaps 3 million pages.)
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(6) NWU Opposes Google Settlement
from a Press Release (August 13, 2009)
The National Writers Union today announced its opposition to the proposed $125 million settlement of a class-action copyright infringement lawsuit brought by writers and publishers against Google because its massive book-scanning project violated their copyrights.
“The proposed settlement is grossly unfair to writers,” said Larry Goldbetter, president of the National Writers Union, Local 1981 of the United Auto Workers. “It gives Google monopolistic control over access to many previously published copyrighted books and materials, and allows Google to collect and sell information about the reading habits of individuals.”
The NWU’s decision to oppose the settlement was approved by the union’s Delegates Assembly following three days of discussion last weekend in Chicago.
Though the NWU is not a party to the lawsuit, many of its 1,500 members – book authors, journalists, technical, academic and educational writers – will be directly affected by the settlement.
“More importantly, the economic well-being of all writers will be greatly impacted by precedents set by any court-approved agreement,” Goldbetter said.
“By scanning and digitally reproducing millions of copyrighted books and articles without permission by the writers, Google violated authors’ constitutionally protected rights,” Goldbetter said.
“According to our understanding of the proposed settlement, writers whose copyrights were violated might receive a check for between $60 and $300 for each book and $15 per article,” he added. “Compared to the number and seriousness of the violations, the amount being offered by Google to each writer is ridiculously low. Also, of the $125 million offered by Google, only $45 million is for writers. This seems way short of the amount needed to compensate authors of millions of books,” he said.
The NWU also opposes the proposed settlement because it would give Google a license to reproduce a writer’s copyrighted work unless the writer specifically tells Google to remove his or her work from the program. This would apply to U.S.-based and foreign writers who might not be aware of the settlement and to those who presume – with good reason because it’s the law – that their copyright protects them without the need to take further action.
“Putting the onus on writers to contact Google is also grossly unfair,” Goldbetter said, “Google is essentially saying ‘we are going to steal your work and sell it under terms we dictate unless you tell us not to.’ A corporation, no matter how powerful, shouldn’t be able to profit from your work without first contacting you and obtaining your permission in writing.”
Finally, “the NWU opposes the settlement because it interferes or might interfere with the relationship writers have with their publishers,” Goldbetter said. “The settlement makes assumptions about electronic rights that writers may or may not have assigned to publishers and it sets up an unfair binding arbitration process to resolve disputes between writers and publishers. These disputes must be arbitrated on a case-by-case basis. The settlement does not allow for writers, who were collectively targeted, to collectively negotiate to settle these disputes.”
The NWU’s decision to oppose the settlement is especially timely. Individual writers, publishers, organizations or anyone else who wants to opt out of the settlement, object to the settlement, intervene in the case, or file a “friend of the court” brief, must file his or her objections, notices or legal briefs with the Federal District Court in New York City by the close of business on Friday, Sept. 4, 2009. A hearing on the matter is set for Oct. 7, 2009.
The National Writers Union is the nation’s only labor union and advocacy organization for freelance writers in all genres, media, and formats. In addition to print media writers, NWU represents electronic writers and editors of blogs, e-newsletters and web sites. NWU is affiliated with the United Auto Workers (UAW) and the AFL-CIO. NWU’s headquarters are at 113 University Place, 6th floor, New York, NY 10003.
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(7) Q&A from Author's Guild Web Site:
Should I Opt Out? Should I Fear Google? What about the Money?
(Answers about the Google Book Settlement)
There’s not much time left for authors to opt out. What should I do?
Short answer: nothing.
Longer answer: Opting out of the settlement is for authors who want to preserve their right to sue Google themselves. We don’t think there are any such authors.
Then, do I need to sign up somewhere?
You don’t have to—your rights are fully protected either way. But yes, we do recommend that you claim your books. It’s easy to do that on line, at www.googlebooksettlement.com. Then when money starts coming in that belongs to you, the Book Rights Registry will know where to find you.
What money?
If Google scanned your book from any library, you may be entitled to a small payment just for that: at least $60 per book, and up to $300, depending on how many people claim their books. (The deadline is next January 5 and, again, you sign up at www.googlebooksettlement.com.)
There will also be money from advertising. When Google displays ads next to any page from a book of yours, you are entitled to a share of the money. And then there will be money from institutional licenses and from sales to consumers who find books through Google search and want to read more than a small sample.
In addition, there will be per-page printing fees from users of free access terminals in public and academic libraries throughout the country.
All this applies to millions of books that have been out of print. Books still in print (published up to January 5th of this year) can be included if that’s what both the author and publisher want.
But what if I don’t want Google displaying my book at all?
You are fully protected. The settlement gives rights holders full control over how their books appear in the program. You can tell Google to display nothing at all. You can display only snippets. You can let users see a fixed percentage of the book. You can let users buy the ability to read the whole book.
And you can change your mind at any time.
Assuming I do want to let readers buy access to my book, who decides the price?
You do. The rights holder.
Google has developed an algorithm to help find optimal prices for different books. Those prices will be used when rights holders don’t want to decide on their own, or when rights holders can’t be found.
But the rights holder can always take over and specify a price.
Am I the rights holder – or is the publisher – if my book is out of print?
When your book goes out of print, rights should revert to you, but generally you have to take action to make sure that happens: send a written request to your publisher. This settlement makes it more important than ever that authors do that.
If rights haven’t reverted, you and your publisher share control (and share the revenue). But you always retain veto power.
What is Google’s role in the new Book Rights Registry?
None. As part of the settlement, Google has to put up the start-up money to get the Registry up and running. (We expect them also to help with some tech support.) But the Registry will be controlled by a board of authors’ and publishers’ representatives; Google does not get a voice.
What about the “orphan works”? Doesn’t Google get a monopoly over those?
There is a big difference between “out-of-print” works and “orphan” works. It is inevitable that some rightsholders will not claim their out-of-print books, but we believe that over time most will. Unlike true orphan works – where the rightsholder is unfindable, such as photographs published without attribution – books have lots of identifying information that the Registry can and will use to find their rightsholders.
In this way the settlement will rescue these books from the purgatory they are in now. And as that happens – as money begins to be collected on behalf of rights holders – we’re quite sure that the rights holders will come forward. Our own experience with the Authors Registry has shown tremendous success in finding rights holders of out-of-print books. We expect the Book Rights Registry to do even better, and to create what the industry has needed for so long, a comprehensive database of copyright owners.
So we think the settlement, especially the establishment of the Book Rights Registry, is a big part of the solution to the orphan works problem.
Can Google “repurpose” my text to make something new? Can they add hyperlinks to other sites?
No. The settlement includes strong protections for “Integrity of the Text.” The words of a book may not be altered in any way. Google cannot add hyperlinks (except to help the reader navigate within the book: for example, from the table of contents to the referenced page).
Should I be worried about my book being marred by intrusive advertising?
There are strict limits on what Google may and may not do in the way of advertising – for example, no pop-ups or pop-unders, and nothing that blocks any portion of a book at any time. Furthermore, the rights holder always has the right to bar advertising from any of his or her books.
What if Google ever decided to make a book disappear – under pressure from a foreign government, or to block porn, or for any other reason?
If that happened, Google would be required immediately to notify the Registry and turn over a complete digital version of the book. The Registry, and libraries, may then make it available (assuming the rights holder agrees).
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(8) Writers Balk at Google’s Proposed Book Deal
by Edward Hasbrouck
This fall, a federal judge’s ruling on a lawsuit against Google, the Internet search giant, could drastically shape the future of books and everyone associated with them –publishers, booksellers, libraries, readers and writers.
And at least one organization of writers, the National Writers Union (a UAW local), is worried about what that future could look like.
The Google case is another chapter in the unfolding story of what happens when traditional cultural forms can be digitized. It started in 2004, when Google reached an agreement with five major research libraries to copy all of their books, then make them available to search and read to different degrees on the internet. Google portrayed its grand universal library project as permissible under copyright law’s exception for copying for “fair use.”
Various individuals and groups, including the American Association of Publishers and the Authors Guild, sued, claiming Google’s project violates copyright law. The suits were consolidated in 2005.
Last October, lawyers for Google and the plaintiffs submitted an agreement that would give Google exclusive rights to digitally publish “orphan” books – books still in copyright but out-of-print – if copyright owners did not opt out. The agreement would establish a “Books Rights Registry” to govern rights for authors, publishers and others, and it provided $125 million (about $45 million for writers) to compensate for copyright violations.
The National Writers Union has fought for writers’ digital rights previously. In 2000 it won a case – New York Times v. Tasini – in which the Supreme Court ruled that writers did not implicitly give up electronic republishing rights when they sold articles.
Although NWU has not yet decided whether to formally file objections to the settlement by the Sept. 4 deadline, last week it announced objections to how the agreement treats writers – and readers.
Union president Larry Goldbetter says the deal “gives Google monopolistic control over access to many previously published copyrighted books and materials, and allows Google to collect and sell information about the reading habits of individuals.”
NWU objects to the minimal payments to writers, the grant of rights to Google unless authors opt out, and how the deal forces writers into “an unfair binding arbitration process” case-by-case, without the possibility of collective negotiation.
Edward Hasbrouck, co-chair of the NWU book division, objects to the proposed settlement’s assumption that publishers and writers share the same interest when “from the beginning there’s a conflict between writers as workers and employers: Who could own and get income from publication in electronic form?”
Although Google claims simply to be continuing its quest to organize knowledge and enable everyone to search it, Hasbrouck says, “This is about a corporation trying to make money off libraries of books for which they paid nothing.”
Not only would Google establish a monopoly – an issue the Department of Justice may raise in court, Hasbrouck says – by granting Google rights unless writers opt out, but the agreement “turns copyright on its head.”
And by making the settlement last for the life of existing copyrights, the privately negotiated deal sets the legal framework far into the future, usurping the role that Congress should fulfill.
Hasbrouck argues the deal not only intervenes in the relationship of writers and publishers but also limits authors’ rights as individuals and as potential collectivities in bargaining.
Readers have reason to worry as well about Google’s ability to track their reading habits and sell that information.
While the potential benefits of a global digital library may be huge – just like the potential profit and power for Google – the Google deal has too many flaws, including infringements of rights of writers and readers, to set the rules for a new era of digital books.
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(9) Lawyer and Author Adds His Objections
to Settling the Google Book Lawsuit
by Miguel Helft and Motoko Rich
Bottom of Form
Published: August 18, 2009
SAN FRANCISCO — A growing chorus of authors, academics and other book industry figures is objecting to the settlement of a class-action suit that would allow Google to profit from digital versions of millions of books it has scanned from libraries.
When the settlement was announced last October [2008], Google and the groups representing authors and publishers who had originally sued the company hailed the agreement as a public good. Readers and researchers would have access to millions of out-of-print and rarely seen books online, libraries nationwide would gain access to new volumes in electronic form and authors and publishers would have new ways to profit from digital copies of their works.
More recently, those questioning the agreement, which is subject to a court review, have raised concerns about whether it is fair to authors, whether it protects the privacy of people whose reading habits might be tracked and whether Google is being improperly given what amounts to exclusive rights to commercialize millions of out-of-print books. The Justice Department has begun an antitrust investigation.
In the latest objection, Scott E. Gant, an author and partner at Boies Schiller & Flexner, a prominent Washington law firm, plans to file a sweeping opposition to the settlement on Wednesday urging the court to reject it.
“This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent,” Mr. Gant said in an interview. Google and its partners are “trying to ram this through so that millions of copyright holders will have no idea that this is happening.”
Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.
Legal experts, who had not seen the filing but heard a description of it, said it could be the most direct attack on the agreement so far.
“It may be the most fundamental challenge to the settlement yet,” said James Grimmelmann, an associate professor at the Institute for Information Law and Policy at New York Law School, a critic of the agreement whose blog tracks filings and commentary related to it.
The court has set a Sept. 4 deadline for briefs on the settlement and has scheduled a hearing for early October.
Objections to the settlement have been raised by groups including the National Writers Union, the American Society of Journalists and Authors, representatives of the faculty of the University of California and the literary arm of the William Morris Endeavor entertainment agency.
The settlement has plenty of backers. Google and its former adversaries, the Authors Guild and the Association of American Publishers, who originally sued Google in 2005 in Federal District Court for the Southern District of New York, continue to promote its benefits, and say it does not create a monopoly. Some outside groups, including the Association of Independent California Colleges and Universities and the National Federation of the Blind, have supported it.
The parties to the settlement, who had not seen Mr. Gant’s filing, dismissed his stand, saying that the agreement was an appropriate use of the class-action rules, that the Authors Guild fairly represented all authors and that those whose books might become part of Google’s database had been appropriately notified.
“It is not surprising that for something this big and interesting, there will be multiple viewpoints, including some critics,” said Daphne Keller, managing product counsel at Google.
“The rights holder has 100 percent control and choice,” said Richard Sarnoff, former chairman of the Association of American Publishers and co-chairman of the American unit of Bertelsmann, the parent company of Random House. “If any author doesn’t want Google to be marketing or displaying their work, within 48 hours any of these works get pulled by Google.”
But Mr. Gant, who wrote “We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age” and is filing the action on his own behalf, not his firm’s, insisted that class actions were never intended to establish the kind of licensing agreement that Google obtained.
Legal scholars say that class actions have been used to reshape institutions and industries, as this settlement appears to do. “It is an interesting challenge, but how the court will respond is uncertain,” said Deborah R. Hensler, a professor at the Stanford University Law School.
While not opposing the settlement outright, William Morris advised its clients to opt out of it, on the grounds that it set non-negotiable royalty terms for works that are out-of-print but still in copyright. The Authors Guild has disputed that, saying authors have the right to renegotiate the terms at any time.
“I opted out of the settlement just on ornery grounds,” said Christopher Buckley, author of “Thank You for Smoking” and “Losing Mum and Pup,” a memoir. He said he was suspicious of the claims by Google and the Authors Guild that the settlement would help breathe new life into out-of-print works. “I think books either stay in print or don’t pretty much on their own,” he said.
He said he was skeptical that the agreement was increasing the public good. “Whenever I hear capitalism proclaiming noble motives,” he said, “something makes me check my wallet.”
I am a John Henry researcher. My paper on the subject, "Chasing John Henry in Alabama and Mississippi," appears in Tributaries: Journal of the Alabama Folklife Association, Issue No. 5, 2002. A synopsis can be found at
http://www.ibiblio.org/john_henry/alabama.html
I think that the evidence that John Henry was John Henry Dabney, a Mississippian who died after racing a steam drill in Dunnavant, Alabama, in 1887, is much stronger than that marshalled by Nelson in his book, "Steel Drivin' Man." Testimonial and documentary evidence dovetail nicely to build a strong, albeit circumstantial, case.
Nelson found no evidence that his candidate, John William Henry, was a steel driver and no evidence of a contest between a man and a machine. I think it highly unlikely that the lines of the ballad saying they "took John Henry to the white house" were present in the original version. Thus, I consider Nelson's finding a white workhouse at the Virginia Penitentiary to be irrelevant. I also think it unlikely that the bodies of convicts who died at Lewis Tunnel were sent back to the Virginia Penitentiary in Richmond for burial, as Nelson's case requires. They were probably buried in the graveyard at Lewis Tunnel. Further, "John Henry" was such a common name that finding a convict with that name at Lewis Tunnel carries no logical force.
Much discussion can be found at
http://www.mudcat.org/thread.cfm?threadid=4018
http://www.mudcat.org/thread.cfm?threadid=50747
http://www.mudcat.org/thread.cfm?threadid=45408