GBS: National Writers Union Opposes Settlement

Local 1981 of the United Auto Workers, a/k/a the National Writers Union, has issued a statement opposing the proposed Google Book Search settlement. According to Larry Goldbetter, the NWU’s president:

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. 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.

Since I thought that the original lawsuits were losers because of Google’s fair use case, I have to disagree. Authors are entitled to nothing in exchange for Google’s scanning, indexing, and snippet display. The $60 a book inclusion fee is found money.

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.

This is the opt-in/out-out point that scholars such as Oren Bracha have raised. In a sense, it’s inherent to class action law, so the mere fact of going to an opt-out regime can’t be a winning argument to reject the settlement. Otherwise, class actions in copyright cases would be impossible. One needs some argument why this opt-out is unfair or infeasible. The strongest arguments I’ve heard on that ground, which are hinted at in the NWU’s statement, are deficiencies in notice towards the class and the international implications (since authors from other countries are unfamiliar with United States class actions and have an especially strong tradition of automatic copyright without formalities).

[Finally,] the NWU opposes the settlement because it interferes or might interfere with the relationship writers have with their publishers. 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.

This is indeed one of the most controversial aspects of the settlement: its creation of the Author-Publisher Procedures to reallocate, by fiat, electronic rights in books. Interestingly, more of the suggestions that the reallocation is unfair seem to be coming from the authorial camp than from publishers. It’s possible either that the authors got outnegotiated by the publishers or that the more numerous author class has a longer tail of members whose ox will be gored or who are particularly talkative.

The NWU’s points about arbitration are quite interesting. As a union, it has an interest both in providing an inexpensive forum for its members to achieve redress (arbitration good!) and in being able to negotiate on all its members’ behalf at once (arbitration bad!). I expect to see multiple filings in the weeks to come that focus on defects in the arbitration procedures, to be followed by some counter-filings that play up the virtues of the process.