GBS: A Retro Kind of Motion

Another recent filing, this one from the son of the prolific author Kay Boyle. This one focuses on the Registry, and on whether the AG and AAP have negotiated a deal that’s truly in the interests of individual authors. It has something of a kitchen-sink quality, but here are a few of the issues that struck me as salient:

  • The attorney filing the motion, Jerome Garchik, has been trying to have himself named as an “independent” director of the Registry. This quixotic campaign (he doesn’t actually ask the court to order that he be appointed) does raise an interesting question: What reasons, if any, must the named plaintiffs give for their choice of Registry board. Legally speaking, the settlement would suggest that the answer is “none,” but pragmatically, I would have thought that the parties would be well advised to announce the intended board now. They have designated an executive director-in-waiting, Michael Healy, who has a good reputation as a forward-thinking metadata technocrat from his work at the Book Industry Study Group. The positive reaction to that choice makes me think that the parties ought to have nothing to lose and a lot to gain by trotting out similarly well-liked board members. If the slate included, say, an academic author and a publisher with library experience, a lot of people would be nontrivially reassured. I pressed on this issue at the Columbia conference in March, but didn’t get much of an answer.

  • The filing appeals to cy pres principles. Cy pres is the equitable doctrine by which courts are empowered to reform charitable trusts whose original purpose can no longer be fulfilled. The filing suggests that the Registry’s escrow of revenues for orphan works should be viewed through a cy pres lens, which would permit the court to redirect the money to “a related, existing non-profit such as a consumer rights group, a health provider, or a university.” The settlement does already direct that unclaimed funds from Consumer Purchase programs eventually go to charities; I read this filing as trying to make that redirection earlier and more comprehensive.

  • The filing states, “The Court should insist that membership in either the Authors Guild or the Publishers Association is NOT required for a rights holder to seek royalties from Google via the Registry.” I see no need to worry here; no such clause is in the settlement, so what the filing asks for is already the case.

  • The filing also insists that the 63/37 split is unfair to copyright owners, pointing to Scribd’s more generous 80/20 split. Perhaps, but I take this to be the virtue of the settlement’s extensive rights owner control provisions; if you like Scribd’s deal better, stay in the settlement and then exclude your works from display uses. (This may be more of an issue with respect to orphan works, but for active rights holders, the 63/37 split is not on its face obviously unfair.) The filing also asks whether side agreements in the Partner Program, on more generous terms, suggest that sophisticated publishers are doing better than the settlement provides. This, in a sense, is William Morris’s core argument: opt out, because you’ll get a better deal in one-on-one negotiations.

  • The filing spells out some fairly specific guidelines for greater Registry independence from the named plaintiffs, including direct annual elections, and more stringent reporting and disclosure standards.

There’s more of a story with this document’s actual filing than with most. It’s typewritten (you can see where the author made corrections here and there), and it was filed in hard copy. This led the clerk’s office to reject the filing, insisting that it needs to be refiled electronically. (Garchik assures me that he’s about to do just that.) Given the subject matter of the case, I’m amused by the ironies of the attorney’s use of a typewriter and the court’s insistence on e-filing.