GBS: Gillian Spraggs, Foreign Author, Does Not Like the Settlement

Gillian Spraggs, an English poet, translator, and historian, has written a essay expressing her opposition to the settlement. (She’s also a frequent Public Index contributor.) Her perspective is that of an overseas author shocked to find that what she thought an unrelated American lawsuit has swept her up in it. A few passages I thought notable, with my comments:

This project has taken me more time than I ever dreamed when I started it.

You and me both.

In the publicity given to the settlement in the press and on the web the phrase ‘US copyright interest’ has been widely used in describing the scope of the settlement. This initially led many non-US authors and rights-holders, including myself, to assume that the settlement would only affect their rights in works published in the United States. However, this is not the case.

Copyright law’s complexity has been a problem for everyone involved. The fraternity of experts who understand how international copyright law works is small indeed. The settlement has been complicated by the need to work around copyright’s territoriality rules. Now copyright owners are facing that complexity; even a perfect notice program would face the obstacle that the underlying law is hard to understand.

The sums that are promised are risible, far smaller than are normally payable for copyright licences. This is hardly fair payment; it is a pacifier for the desperate and the resigned.

Google would insist that the sums Spraggs cites—primarily the $60 per book digitized—aren’t licenses. They’re settlements in compromise of disputed infringement claims. You can claim your $60 and then exclude your book from any future display uses. A “license” wouldn’t be yours to keep in that way.

Here again, no regard is paid to the question of who actually owns the electronic rights to the work, or the US rights either. In the case of nearly all works published before 1987, and many that have appeared since, the electronic rights will not have been licensed to the publisher. Similarly, in the case of many books that have never been published in the USA, the US rights may also not have been licensed to any publisher. In such cases the Google Book Settlement Agreement is effectively making a bid to supersede and rewrite existing contracts: assigning to publishers rights that they did not previously possess and revenues that they otherwise would not receive. This quite unnecessary intrusion into existing contracts is a very disturbing feature of the settlement agreement.

This argument seems to be one of the ones that has really touched a chord with some authors and agents. The Author-Publisher Procedures may have been the closest the parties could come to a royalty-allocation scheme negotiated behind a Rawlsian veil of ignorance. All the same, it consistently seems to be the authors, not the publishers, who feel they got the short end of this particular stick.

The definition of ‘commercially available’ has caused alarm among foreign publishers, since it seemed to imply that books in print but not published or directly distributed in the US would be made available by Google to searchers (in preview) and customers (for online access), unless and until the rights-holders registered the works at issue with the Book Rights Registry and changed the settings, or applied to have them completely removed from the book corpus. However, following consultation with the lawyers who negotiated the settlement on behalf of the AAP, the Publishers Association of the UK has reported that Google plans to classify any book as commercially available if it can be purchased new from within the US through a website.

I hadn’t picked up on this point; it’s good to know.

The settlement agreement lays out the default pricing arrangements in considerable detail. It is open to rights-holders to specify their own prices, which the agreement states that only they can change. However, Google Inc. reserves the right to offer ‘temporary discounts off the List Prices from time to time at its sole discretion’. The payment to the Registry will be at the list prices ‘unless otherwise agreed by Google and the Registry’: in other words, it is always open to Google and the Registry to agree to pass the cost of any discount on to the rights-holders. This is an important point which has not received much comment and which in my opinion should ring alarm bells.

Much would turn on the quality of the Registry’s governance. I wouldn’t expect its board members to approve of such pass-alongs, but it is interesting that this power is reserved to them. I can see the argument for flexibility, but it would be useful if someone could point out the kind of scenario in which such flexibility would be necessary.

I even find myself wondering whether, so long as Google is pocketing the money from the ads served up next to search results, it may not be too worried either way by the success or failure of its venture into bookselling.

Que sera, sera. To the extent that the bookselling programs are flops, though, I suppose that rights owners and readers will be relieved from worrying about a concentration of power in Google.

Another security issue was raised in a point made from the floor at the Columbia conference. The participant noted that regardless of the fact that the complete Book Search corpus was only supposed to be accessible from within the US, people outside the US could use a proxy server located within the US to access the service. No one responded to his point. However, he is quite right.

Anyone who was present at the conference will remember the question, and would probably be willing to hazard a guess as to why the question was not answered. However, he is quite right. If the settlement proceeds, these porous territorial boundaries are likely to create substantial international pressure for local reforms to enable Google to implement its book search and sales programs in other countries.

The lack of representation of non-US rights-holders is troubling for many reasons. US and foreign authors and publishers cannot be said to have identical interests in the management of the Registry and the proposed operation of the book service.

One point that suggests itself concerns compliance. Since the digitised book corpus will only be accessible for commercial purposes within the US, foreign rights-holders who register will find it difficult to know whether their work is being used or excluded from use in accordance with the terms that they have stipulated. Moreover, they arguably have a much greater interest in Google’s taking steps to maintain territorial security; and there is no doubt that if Google is really serious about confining access to users within the US, determined measures will have to be taken (see above, Porous Territorial Boundaries).

This is the most concrete and forceful point I’ve seen made to date on the representativeness of the Registry’s board.

Many writers would find it repugnant for their work to be displayed alongside anti-gay advertisement campaigns. Many would also be repelled by anti-abortion campaigns. Some, of course, would be unhappy about ads for abortion clinics. Altogether, the rights-holders’ lack of control over the content of the ads that Google proposes to display alongside their work is a serious matter for concern.

This is a fascinating cultural question. I’ve had similar instincts; it’s one reason (among many) I don’t have advertising on my blog. No ads means no inferred endorsements. At the same time, because I use a Creative Commons Attribution license, I accept the possibility that someone will scrape my posts and use them alongside search-engine spam, domain landing pages, or other advertising material I loathe. I decided that I’d rather commit to open access, even open access for people I dislike, and that the presence of my CC-licensed words on a web page wouldn’t reasonably be taken to suggest I endorsed everything on that page. There are shifts of the meaning of authorship at work here, which raise important theoretical questions both in copyright and trademark law.

Article 16 of the settlement agreement mentions the right of either party to terminate the agreement ‘if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met’. However, it then states that ‘the Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffs and Google’.

The whole agreement, then, is subject to conditions that are being kept secret from the overwhelming majority of the settlement class. Authors and publishers are being urged by the promoters of the settlement to opt in to its provisions, but they are not being told all that they need to know in order to assess their best interests. This is yet another highly disquieting feature of the whole business.

Spraggs first made this point in comments at the Public Index, and I remain troubled by it.

Using information freely available on the web, I have investigated the origins and publishing histories of each of the plaintiffs. None of them originate from outside the US. (Two were born in New York City, one in Yonkers, one in Chicago, and one in Texas.) All have published mainly or exclusively in the USA. There is no representative here of authors from outside the USA, though the settlement class comprehends a very large number of non-US authors.

This is an interesting twist on her point about foreign Registry representation, above.

I would like to close by noting that I’m saddened that Spraggs’s essay links to the PDF of the settlement, rather than deep-linking to the individual cited paragraphs at the Public Index.

“I’m saddened that Spraggs’s essay links to the PDF of the settlement, rather than deep-linking to the individual cited paragraphs at the Public Index.”

It would have been quite nice to do that, I agree. However, my essay was researched and written over a number of weeks. The Public Index didn’t come online until near the end of July, by which point at least two-thirds of the piece was already written, and referenced. I am very grateful for your site: I used it heavily in the final stages of revising the essay, and I profited from comments I found there by yourself and Edward Hasbrouck. But by that stage, updating all the references to the settlement agreement to link to pages in the Public Index - well, it would have been more work than I could have found time for.