Somehow I missed this statement from the Science Fiction and Fantasy Writers of America when it came out. Their list of concerns with the settlement contains a bunch of familiar arguments, plus a few new ones:

The class representatives do not include any authors of adult trade fiction, an obvious issue for SFWA.

I’m not sure how finely one can slice and dice the class representatives (Scott Gant’s brief has some interesting things to say here about the Authors Guild’s role or non-role in representing authors), but the trade-publishing angle is one that may be noteworthy.

The class fails to consider fully licensees of works and fails to account for their interests.

I’m not sure what they’re getting at here, and would like to know more.

The terminology of the Google Book settlement makes no distinction, nor does it provide a mechanism for discovering the difference, between works deemed out-of-print and works in the public domain.

Unless they mean something other than what I think they mean, this strikes me as wrong. The settlement contains an administrative procedure to sort out claims over whether a book is public domain, and even provides for the potential recapture of revenues mistakenly paid over to the Registry for books that turn out to be in the public domain.

SFWA is not advocating a particular course of action nor providing legal advice for individual authors, who should evaluate the proposed Google Book settlement based on their own situation and with the advice and input of their own legal counsel.

For the record, SFWA believes that the proposed Google Book settlement is fundamentally flawed and should be rejected by the court.

That’s the strongest statement I’ve seen from a professional authors’ association.

Although I am a member of SFWA, I absolutely disagree with their official position on this settlement.

SFWA has taken a surprisingly hard line on copyright matters in recent years, and seems opposed to any and all experiments with copyright and new ways of accessing books. And they have little interest in adjusting the balance of interests between authors, secondary authors, and readers. It’s unclear to me to what extent the membership at large really supports these positions.

“‘The class fails to consider fully licensees of works and fails to account for their interests.’

I’m not sure what they’re getting at here, and would like to know more.”

For a guess, they may have anthologies of short fiction in mind. From what I know of anthology publishing it is fairly common for the editor to contract with the publisher to deliver the anthology and the contributors to license the editor to use their stories/poems. The settlement agreement doesn’t take account of such arrangements.

Moreover, it doesn’t allow for non-exclusive licenses, or first publication rights. If a particular sci-fi story is in several anthologies - who gets paid? If some of those anthologies are in print and some are out of print - what happens about display? I can see all kinds of room for trouble.

Which takes us back to: a one-size-fits-all publishing agreement, apparently so straightforward, is actually a complete can of worms. Publishing doesn’t work like that.

The public domain thing is interesting. Theoretically, Google is supposed to:

3.1(b)(1) As of the Notice Commencement Date, and upon Plaintiffs’ request, Google will provide Plaintiffs, in a form mutually agreed, with a list of the Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized as of the Notice Commencement Date and the date each Book, Public Domain Book with a copyright date after 1922 or Government Work was Digitized by Google.

Google’s supposed to list them, but it doesn’t have to differentiate which books (and inserts) are in the Public Domain. In order to do so, Google would have to compile a master list of books that are copyrighted in the US as of this date. That would be a very useful list to have, but I don’t believe they have any intention of making one. The current book database is clearly not that, and still won’t be after all non-orphans have claimed their works.

As far as I can see, then, there is no other mechanism beside author claims to differentiate public domain works from orphan works still in copyright, so they will be treated identically. Even if Google could create a list of Books for which copyrights have been registered and properly renewed, there’s no way they could produce one for inserts, many of which were copyrighted as part of a compilation copyright. SFWA has been trying to untangle authors’ short fiction copyrights from the thirties, forties, and fifties, and it’s an enormous undertaking in itself.

Then, there’s 3.15(c): This Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i) the use of any work or material that is in the public domain under the Copyright Act in the United States…

And finally, there’s 6.3(b):

Google will have no right to reclaim Public Domain Funds for a book that is in the public domain under the Copyright Act in the United States from a Person who claimed he, she or it is a Rightsholder of such book once the Registry pays such funds to such Person.

PS: I’m a past President of SFWA, but I wasn’t involved in the wording of the announcement. FWIW, I believe that the organization’s primary purpose is to stand up for its members’ rights, most of which are derived from US copyright law. I’m very glad that they’ve taken this stance.