I didn’t catch the whole hearing today. I started out my IP class watching the live stream—I’d interrupt now and then to provide them with context—but when the committee took a vote break, I switched the class over to patentable subject matter and we never switched back.

One other thing I noticed while I was watching was a bit from the Authors Guild’s Paul Aiken. When David Drummond announced Google’s expanded reseller program, Aiken noted that it would primarily affect out-of-print books. Reuters gives this anodyne version of what he said:

The announcement would affect most of the books available through the Google book scan project since most authors with books in print would decide not to sell through Google, said Paul Aiken, head of the Authors Guild.

What I thought I heard (possibly garbled in the chaos of setting up the system for my class) was him saying that authors got such a good deal under the settlement that publishers would do anything they could to sell through the Partner program or not through Google at all, rather than split the take with authors the way that the settlement dictates. That’s why the settlement would only really matter for rights-reverted out-of-print books. If he’s telling the truth, doesn’t this confirm the main point made by William Morris in its advice to its authors—that many publishers will be removing their books en masse from the settlement programs, such that the actual economic terms of the settlement won’t matter very much much of the time? It now sounds as though the AG and WME are in agreement that the settlement is really only a big deal for out-of-print, and especially orphan books. Which would all go to confirm the intuition that started me down this road: this is about the orphans.

‘This is about the orphans.’

Orphans and foreign books. They are evidently determined to try and force foreign authors to row in their galley:

‘The Settlement is fully consistent with the national treatment principle of Article 5(1) of the Berne Convention … In the United States, that principle “simply assures that if the law of the country of infringement applies to the scope of substantive copyright protection, that law will be applied uniformly to foreign and domestic authors.” … Thus, Article 5(1) applies only to national laws granting substantive rights. … The Settlement does not provide or grant any substantive copyright rights; only Congress can do so. Instead, it is the settlement of copyright litigation between private parties that provides extensive remedies to members of the class.’ - Aiken’s written testimony

Strange remedies, that make so many ‘members of the class’ feel really ill.

The settlement removes rights: first and foremost the fundamental right of copyright owners to authorize the reproduction of the copyrighted work.

Your interpretation that “this is about the orphans” goes against what Drummond said when he downplayed the significance to Google’s business plans of “orphan books”, but said the real big deal for Google in the settlement is that it would “clarify” (his term; I would say “meddle in”) author-publisher disputes over rights — as if authors need or want Google’s “help” in resolving our issues with print publishers.

I’m not inclined to trust Google, in general, when it talks about its motives, but in this case I think Drummond is fairly representing their interests. Due to some combination of lack of (or misleading) notice, ignorance of the more favorable terms available outside the settlement (including through Google’s own partner program, as Anita Barthomemew has pointed out), inertia, and belief that the Google juggernaut is inevitable and it’s better to get on board than get run over, most authors will opt in to the settlement and to Google “usage” by default.

Google isn’t trying to compete for the market for in-print books, and publishers won’t likely opt them into the future-conduct revenue models. And orphans are relatively few compared to “rights-reverted” (or e-rights never licensed) author-controlled in-copyright books, which include at least 90% of in-copyright books.

When Aiken of the Authors Guild said in the hearing that there’s “no market” for out-of-print books, he’s speaking for the AG’s members: the most commercially successful authors, who like publishers make their money off the latest best-seller, then move on to the next. But the vast majority of authors are those who write the vast majority of books that go out of print within a year or two. And Google is correct, I think, in recognizing that the potential market for this long tail of books, in which the largest player is currently online used-book dealer abebooks.com (will books available from abebooks.com be considered “commercially available” for settlement purposes?) is large and has no major current competitors.

The major potential competitor for Google in this niche is online self-publishing, which is why Google is so insistent on (1) opting these authors in by default, and (2) that “commercial availability” will be determined from databases rather than from search: search would often determine that the author is selling the out-of-print book as an e-book on their own Web site (something Aiken clearly hadn’t considered, as he could only speak of authors “licensing” their out-of-print books through distributors, rather than self-publishing). Aside from search advertising and “non-display” uses, this is the market Google is targetting. Orphans are important to scholars (mostly) and the public, but not to Google’s profits.

Individual authors can profitably self-publish e-books within the terms of their existing contracts. Google can’t, unless it can use the settlement to rewrite those contracts into some standardized deal, because the revenue wouldn’t cover the cost of Google reading the individual contracts.

And if the standardized deal for those opted in by default shifts rights and revenues from authors to print publishers, it’s all the same to Google — or better, if that motivates print publishers to endorse the deal.

There’s also a whopper in Aiken’s written statement: “It may be unclear who controls the digital rights for a particular out-of-print book, since many (but not all) older contracts make no mention of digital or analogous rights.” In fact, it’s well settled (see, for example, both Random House v. RosettaBooks and NYT v. Tasini) that no assignment of electronic rights can be inferred from silence on the question, and that in cases such as Aiken described — indeed, the majority of books subject to the settlement — the e-rights clearly belong to the author. The legally unsupported claim to the contrary is a brazen (and common, repeated, and continuing) rights grab by print publishers against authors, to which the settlement is a craven sellout in conceding a share of those authors’ rights and revenues to print publishers.

Another of Aiken’s wilder flights occurs when he states that ‘meaningful, ambitious efforts [have] been made to locate … rightsholders [of out-of-print books]’.

It’s an interesting definition of ‘meaningful’ that encompasses a German translation of the Settlement Notice that was ‘seriously deficient to the point of being unintelligible’ (Declaration of Dr Christian Sprang); a Swedish translation that was ‘misleading and/or meaningless in numerous ways relating to both terminology and grammar’ (Declaration of Kristina Ahlinder); a French translation ‘full of glaring translation errors and false statements, too numerous to mention’, and in ‘some parts … totally unintelligible’ (Declaration of Hachette Livre); and a Japanese translation that was ‘impossible to understand’ because it was ‘riddled with translation errors and awkward expressions’ Declaration of Naoki Gokita).