GBS: FIlings Roundup for Tuesday, September 15

It appears that the filings really are pretty much complete. Only sixteen hit the electronic docket yesterday.

  • One more Dutch form letter, one more German form letter. German publisher Books on Demand, which specializes in print-on-demand, filed a familiar “we join in the objections of Scott Gant and the foreign publishers” letter, but added a few paragraphs about how it believes the settlement doesn’t appropriately treat print-on-demand. As a publisher of print-on-demand books, it’s upset that it will have to compete with Google’s ability to gain licenses by default; it also therefore worries that books available through print-on-demand will be treated as Commercially Available.
  • Four authors wrote individual letters to the court asking it to insert a definition for the undefined term “children’s Book” in the settlement. (Their proposed definition: “Children’s Book means any Book that is marketed to or read by or to children under 18 and/or used in elementary, middle, or secondary schools, including textbooks.”) They also ask for the settlement to add a Children’s Public Access service, available to public school libraries, and restricted to children’s books.
  • Missouri filed unclaimed-funds objections much like those of the other objecting states.
  • Author Andrea Warren filed a brief letter asking the judge to “[p]lease take a look at each and every issue around this settlement and keep in mind that the livelihood of writers—the creators of the product at stake—stand to benefit the least.” Author Donna Wood sent an angry letter both to the court and to her senators and representative in Congress.
  • The Washington Legal Foundation, a non-profit that advocates for strong property rights, filed an objection (it’s a publisher, so it has standing to object) on class-action due process grounds. They go through the Supreme Court precedents on notice in some depth, and also raise some familiar issues about conflicts within the plaintiff class.

Judge Chin’s order cites 400+ submissions in all ,but does not state the numbers of opt outs submitted to Rust, the Settlement Administrator, or does it translate to actual numbers of rights holders, authors, or covered works. For example, Amazon claims it is an author, copyright holder of a single work, while other objectors claim they hold or represent thousands of registered included principal books or inserts. I think someone should try to estimate how many works are endorsing the settlement and how many works oppose it by opting out or filing objections.I do not agree with Michael Boni that anyone who files a claim form has endorsed the settlement terms. One would have to review these to see which just claimed the damages, and then withheld permission for Google to e-publish as the claim form allows. Finally, I think the Library amicus and objections are not part of this equation. In fact the library partners of Google should have been joined as defendants since they provided Google with the books to be scanned for their benefit. The libraries essentially said: make us another copy of each book on our shelves-if it were xeroxed or microfilmed, it would be a copyright violation, so why not a violation if it is scanned? Not being a party, the briefs and letters of the libraries in support should not be given any weight at the fairness hearing. And the library associations, asserting consumer rights, also really have no standing to participate at the Fairness hearing on Oct.7th.

“I do not agree with Michael Boni that anyone who files a claim form has endorsed the settlement terms.”

That is definitely not true at all. See for instance the objection of Susan Bergholz:

I operate a literary agency in New York representing more than twenty clients. I wish to object to the Google book Settlement. I have nonetheless advised my clients not to opt out of the Google Book Settlement … Opting out of the Settlement is equivalent to a total loss of control over a copyright-protected work, unless the copyright holder has deep enough pockets to sue Google himself.

I know an agent in London who has taken that exact same decision.

There are authors who have stated on the web that they have claimed their works because they see this as their best hope of protecting them from Google:

I claimed my works today … I hope they throw the settlement out, personally. Unfortunately, I think the fact that Microsoft and other behemoths are challenging it will just mean that authors will have to fill out 3 or 4 of these “Let me out of this thing” forms instead of just one. - sci-fi author Kristine Smith

I hope they’ve got a judge with a brain this time. In the past week I have spent hours that otherwise might have been productive trying to unclench Google’s sticky fingers from my work…it’s not done, though I’ve made progress. - Elizabeth Moon, vice-president, SFWA

Though I’m following my agent’s advice and opting in, I’m hoping the Justice Department quashes the whole thing. - fantasy author Terie Garrison

A further point to follow my last.

When the William Morris Endeavor agency advised its authors to opt out, the Authors Guild responded by saying, in part:

If you want to … retain complete control over whether, and how, your book is displayed or sold to users, you should remain in the settlement.

A similar point was made at the conference hastily called by the Authors Guild in the wake of this episode:

Using what is by now a familiar line, Aiken said the only reason an author should opt out of the settlement is to maintain his or her right to sue Google. Staying in the settlement gives authors much more control over what Google can do with their books, he said.

You can’t set out to scare authors into opting in with a threat that if they don’t, Google will display or even sell their books regardless, and they will lose all control, and then claim when they do opt in that this is an endorsement of the settlement. Doesn’t add up.