All is not quiet at the courthouse. The American Society of Media Photographers and its coalition of photographic and graphical artists have renewed their motion to intervene. That motion, you may recall, was denied by Judge Chin with his usual reason: “The case was filed four years ago and has been conditionally settled; it is simply too late to permit new parties into the case.” The ASMP objectors are upset because, as they see it:

• Google’s scanning program infringed their copyrights, not just authors’ and publishers’.
• The original complaint excluded visual works from the plaintiff class; the 2006 amended complaint included them; the settlement class excludes them.
• Being left out of the deal harms them because they don’t benefit from the Registry.
• Being left out of the negotiations harmed them because they could have pressed for greater compensation.
• Practically speaking, they can’t vindicate their rights effectively if they’re not in the settlement.

Thus, the motion to intervene has two goals. First, it’s a vehicle to make sure that Judge Chin will listen to their objections. Second, it’s a way to try and get a seat at the negotiating table. Both of these questions are intertwined with the question of whether they should be treated as in the class or out of it. In one sense, the motion is schizophrenic, because it complains about being in but also about being out. In another, this ambiguity is precisely the problem; as they see it, they’re getting the worst of both worlds.

Meanwhile, the National Writers Union has issued a statement asking the Authors Guild to withdraw from the case. The NWU’s membership, speaking through its leadership, is also upset with the negotiated terms of the settlement. Its proposed way forward, like the ASMP’s, involves “new negotiations with the many voices that have up to now been excluded.”

Also meanwhile, as I blogged yesterday, Irv Muchnick wants the Google Book Search negotiations consolidated with the Reed-Elsevier negotiations. That would bring writers with works published in periodicals to the table. It would also reduce the control that the folks who negotiated the GBS settlement version 1.0 would have over version 2.0.

See a pattern?

As I’ve been reading these various requests, I’ve been getting the sense that there’s something a little ill-formed about their procedural claims. The desire to have a seat at the table is sensible enough, but that’s not usually how class actions work. So I thought some more, and read some more, about just what it is that bothers these procedural objectors, and how to fit their concerns into a class-action framework. And here’s what I’ve come up with.

Head of the Class

The starting point for my analysis is that up until October 2008, there was no class action. The Authors Guild plaintiffs had crafted their lawsuit in class-action form, but the court hadn’t actually certified that it could be maintained as a class action. In fact, the plaintiffs and Google had agreed (and the court ordered) that Google wouldn’t contest class certification until after all the pre-trial discovery and summary judgment motions.

We all know what happened next. Google and the plaintiffs went off into a room and negotiated what we now know as “the settlement.” But the whole time they were doing that, the plaintiffs were just plain plaintiffs. Their lawyers worked for them.

Another thing to note about those negotiations is that the Authors Guild, as an institution, had a chair in the smoke-filled room in its capacity as a plaintiff. Google might have been able to object to the AG’s role as a plaintiff, since its members are the real copyright owners with standing to sue. But again, that issue would have been aired as part of Google’s opposition to the class certification motion. The risk of losing on that point is among the reasons that the AG brought five individual authors in as co-plaintiffs, so that the case could proceed even if the AG wasn’t a proper plaintiff.

Everything changed on November 14, 2008, when Judge Sprizzo preliminarily approved the settlement. His order:

• Brought the plaintiff class into being, but “provisionally” and “for settlement purposes only,”
• Designated the five named authors (but not the Authors Guild) and five named publishers as representative plaintiffs.
• Appointed the named plaintiffs’ lawyers as counsel for the whole of the class. (That’s Boni & Zack for authors and Debevoise & Plimpton for publishers.)
• Scheduled the fairness hearing for June 11, 2009.
• Hit the “go” button on the class-notice program.
• Gave class members the choice to opt out, or to stay in the class by default.
• Gave class members the option to appear at the fairness hearing, and to object to:
  • (i) the settlement,
  • (ii) class certification,
  • (iii) dismissal of the case,
  • (iv) attorneys’ fees for the author subclass’s lawyers.
• For the time being, enjoined all class members from suing Google “asserting any claims that were brought or could have been brought” as part of the lawsuit.
• Put a self-destruct mechanism on all of the above if the court didn’t approve the settlement.

According to class-action theory, this certification order transformed the lawsuit from being run by the plaintiffs to being run by class counsel. Unless and until the court decides that the class isn’t proper or that class counsel didn’t adequately represent it, the plaintiffs’ case is run by the two law firms that are the class counsel. They owe a duty to the whole of the class, but they don’t really take orders from it. The fairness hearing and objections are designed to test whether they’ve done a proper job representing it, but until then, it’s their show.

Class Clowns

This is what struck me as a bit funny about the ASMP’s motion, the NWU’s letter, and Muchnick’s request of the DoJ. They’re asking for something that class action theory says doesn’t exist.

Start with the ASMP. They’ve asked to intervene—to join the lawsuit as distinct parties. If they’re class members, they have no Rule 23 right to be at the table now. Boni & Zack have been appointed to represent them for the present, but the ASMP can object to the deal Boni & Zack strike. So their voice gets heard later, but it still gets heard. Whereas if they’re not class members, then they’re not bound by the settlement and give up nothing by it. Thus, they don’t have an urgent legal need to be heard now. Their prudential interest in intervening is relatively weak, since, as Judge Chin points out, they could have intervened years ago.

What of the ASMP’s argument that they were cynically included in the class for two years, without their knowledge, to be used as a bargaining chip, only to be tossed aside at the last minute so that they could be ignored? Class action theory would say that there’s been no foul, because during those two years, there was no class. There was a complaint alleging class harms, but with no class certified, the ASMP wasn’t involved in a lawyer-client relationship. Nor was anyone bargaining with the ASMP’s interests; until you actually have a class certified by a judge, class allegations in a complaint are just empty words. Google was free to laugh at the inclusion of non-literary works in the complaint, and one way of looking at the way the settlement was restricted to exclude visual works is to say that when push came to shove, the plaintiffs had to back down from their expansive interpretation of the potential class.

The NWU’s argument that the Authors Guild should be taken out of the negotiations also sounds funny once you think of class counsel as the show-runners. The Authors Guild is already out of the driver’s seat. From another perspective, the Authors Guild is still a named plaintiff of the underlying lawsuit; there’s no way to exclude them from the case unless you persuade them to drop it or rule against them on the merits.

And take Muchnick’s letter to the DoJ asking for expanded negotiations. He’s picked up on an important point of political economy. The DoJ has a lot of clout here, enough to force the parties into negotiations with it, enough to force a revision of the settlement. But its clout isn’t the clout of the judge who can refuse to approve the settlement unless it’s changed to comply with the law, nor is it the clout of a dictator who can demand payoffs to approve your project. It’s just the clout of a determined litigator who’s signaled a willingness to take this one to the mattresses and has the law on its side.

When Google and the plaintiffs negotiate with the DoJ, it’s not because the DoJ is a party or an institution whose approval itself matters. They’re negotiating with the DoJ because it’s a persuasive enemy or ally. It has concerns, and will fight hard if those concerns aren’t answered. But the DoJ has also signaled that if its concerns are answered, it’s likely to push for settlement approval. If so, expect the DoJ to supply arguments for approving Settlement 2.0 that would be as persuasive as its arguments against approving Settlement 1.0 are.

Note, then, that the DoJ is not in a position to insert Muchnick, the Reed-Elsevier plaintiffs, or anyone else, into the official negotiation of Settlement 2.0. That remains the class counsel’s job. The DoJ could push for more voices at the table, but the Statement of Interest makes clear that the DoJ sees its job as enforcing legality, not as building consensus. It’s happy to take input on what Settlement 2.0 should say, but ultimately, it keeps its own counsel.

My conclusion, then, is that the logic of class actions, as they’re currently implemented by Rule 23 in the U.S., does not leave room for any of this recent crop of interventions from the author-class side. The Open Access Trust intervention stands on perhaps different footing; to the extent that it tries to vindicate the public interest, it’s advancing not the interest of class members, but of outsiders who aren’t already being represented by class counsel. Unlike the ASMP, whose members had interests that were obviously closely connected to those of the the literary authors who were suing Google, the Open Access Trust had no way of knowing that the proposed settlement would substantially affect them until the settlement was announced.

Given this potential difference, it may have been a tactical mistake for the Open Access Trust objectors to tie their renewed motion to intervene to their status as members of the plaintiff class. Coming in as outsiders, though, might not work any better. While Judge Chin’s expansive (dare I say “pragmatic”) conception of who should be allowed to object to the settlement will allow them to be heard, it also undercuts their reason for needing to intervene. The result is that they’re heard at the objection stage, but—yet again—not present for the negotiations.

Let’s take a step back. Why does this distinction between negotiation rights and objection rights matter? As all of the movants and objectors recognize, game theory favors the agenda-setters. Those who draft the settlement can pick exactly what it says; that enables them to select the terms that most favor themselves. Objectors, at best, have a shot at convincing Judge Chin to reject the settlement. Even Judge Chin’s veto power is a crude tool; he can’t sculpt the details of the settlement with it. If you get a seat around the negotiating table, you have a lot more ability to pull the settlement in the direction that you want. This, by the way, is one of the reasons I believe that the settlement requires searching review. Its proponents are the ones who picked each and every detail; the approval process should be designed to give them an incentive to get as many details as possible right, rather than the bare minimum.

Social Classes

Where do we stand now? It’s important to look closely at the motion to adjourn the fairness hearing and Judge Chin’s order. The plaintiffs—or rather, class counsel—asked to “adjourn” the hearing. That is, they asked for an indefinite delay, rather than asking to cancel it. Also, even though they indicated that they would be proffering Settlement 2.0, they didn’t withdraw the motion for approval of Settlement 1.0. Why not?

If they did, there’s a risk the class would vanish. If you were to strike the whole of Judge Sprizzo’s order, you don’t just lose the details of objecting to Settlement 1.0, you also lose the creation of the class and the appointment of class counsel. Suddenly, you no longer have two law firms that represent millions of plaintiffs. Instead, you have five authors, five publishers, and an association of authors, plus two law firms that work for them. Yes, they could as a group negotiate Settlement 2.0 and make a motion same as last time. But Judge Chin, now that he’s up on the case, might have issues with it at preliminary approval stage, and others might challenge the renewed class certification, and you’d have to jump over some hurdles that were easy the first time but might not be the second time.

More seriously, if you go back to a plain-old individual lawsuit, the fiction that the class counsel speak for the class no longer applies. That leaves more freedom of action for others—other potential plaintiffs, other potential objectors—in the suit. The reason to disallow intervention is that the case is at a “late” stage. But with no settlement on the table and no class, it goes back to a very early stage indeed. The parties have conducted almost no discovery, nor have they engaged in any serious motion practice—no motion to dismiss, no motions for summary judgments, almost nothing beyond the basic pleading. And that means that it suddenly becomes plausible to demand a seat at the table via intervention, now that you realize that this is a lawsuit about settlement. Here comes ASMP; here come the various author objectors; here come the European governments; here comes the Open Access Trust; here come the libraries; here comes everybody.

The ironic thing is that once you have that many cooks working on the broth, you may not get a settlement at all. Between the kibitzers on the access side—professors, libraries, privacy advocates—and the kibitzers on the copyright owner side—authors here and abroad, agents, composers and visual artists—you’re at a standstill. You need a way of making some people live with deal points they don’t like. Class actions solve the problem by giving the initiative to designated representatives, giving judges discretion over approval, and setting the bar for rejecting a settlement at “unfair” to objectors rather than “less than they want.” Legislation solves the problem by making everyone talk and argue until there are enough people happy enough that Congress can go ahead and pass something without fearing for its reelection chances. Toes get stepped on; noses get bent or sometimes broken.

I like dialogue. I’ve done what I can to facilitate public discussion, and I’m really looking forward to D is for Digitize and the conversations that will take place there. But at the end of the day, something has to happen. Books—and especially orphan books—need to get into the hands (and eyes and ears) of readers, on fair terms that compensate authors, and in a way that keeps publishers and distributors and indexers and libraries able to keep playing their parts, as well.

Say what you will about the settlement, the mere fact that it’s been seriously proposed has pushed our debate about access to books in a very positive direction. People are thinking hard about solutions to problems that seemed intractable just a year ago. And that proposal came from a process that empowered certain people to draft a document and submit it to the court for approval. When the DoJ talks about not wanting to lose “momentum,” that’s not an abstract concern. Our conversations need to be broadly inclusive, but they also need to directed at the goal of doing good things for books.

Class Warfare

But back to the current state of play. I’ve argued, on plenty of occasions, that it’s legitimate to be concerned about inclusive processes in this settlement. (Although, as just noted, procedure serves substantive ends; it’s not a goal in its own right.) And people have been raising process issues today and yesterday, looking to be included in the official conversations. But it’s also the case that the structure of a class action largely forecloses that kind of inclusiveness.

All of which tells me, then, that perhaps they should be focusing more on class-action law. In particular, if the class certification and class counsel are what stand between these groups and being heard in the way they think they need to be, perhaps they should be challenging class certification and the choice of counsel. Both of these objections are standard pieces of class action law. Look back at the list of things Judge Sprizzo’s order did. He didn’t just certify a class and appoint counsel; he also set a date for class members to object to both those moves. Indeed, plenty of objectors filed lengthy briefs arguing either that the class as certified is improper or that class counsel have done an inadequate job of representing class members.

In the ordinary course of affairs, those objections would have been aired at the fairness hearing, and Judge Chin would have needed to respond to them if he approved the settlement. These procedural objections were teed up for consideration at the same moment as the substantive objections to the actual terms of the settlement itself. Indeed, the fact that these objections would be considered provides an essential part of the justification for Judge Sprizzo’s class-certification order. He was able to legitimately approve the original “provisional” certification after only two weeks and without adversarial briefing or objections precisely because the fairness hearing would provide a chance to revisit the question for real.

Now, of course, the fairness hearing has been adjourned, thus putting off the day of reckoning. But this opens up a potential gap in the logic of class certification. Judge Sprizzo’s order approved the class “for settlement purposes only.” Class counsel couldn’t now go off and take the case to trial; they couldn’t dismiss the whole thing. The rationale of a “settlement class” makes sense if the case is moving towards settlement; it justifies postponing inquiry into the class’s bona fides until the fairness hearing. If the settlement isn’t happening on a schedule, then perhaps it becomes time to ask some of those difficult Rule 23 questions. If the substantive issues won’t be up for consideration soon (or possibly at all), there’s much less reason to put off considering the procedural issues.

This observation explains a lot of things. It explains why the parties have only “adjourned” the fairness hearing, and also why the motion to approve the now-obsolete Settlement 1.0 is still officially before the court. It also explains why Judge Chin is cracking the whip about holding the status conference on October 7. I suspect that he wants to be told, directly and explicitly, that Settlement 2.0 is coming, and to be given a specific, near-term timetable for its delivery. The longer the case sits in limbo, the more vulnerable the privileged status of class counsel looks.

I expect that at least some of the objectors may, in the weeks ahead, convert their objections into motions to challenge class certification or to replace class counsel. Some of these objectors may simply want to be part of the negotiations; others will probably be seizing the opportunity to try and scuttle the settlement entirely by kicking its procedural legs out from underneath it. Were I Judge Chin, I would not look on this sort of objection with much pleasure. Trial judges often want class-action settlements to go through; among other things, it clears a difficult, high-workload case off their docket. His most recent order shows he’s well attuned to the public benefits Settlement 2.0 could offer. The procedural mess that will result if he decertifies the class isn’t something any judge would look forward to managing. I think, then, that this sort of objection will not get a warm welcome—but the question is how long a conscientious judge (and Judge Chin is as highly-reputed as they come) can put it off. This concern has to be feeding into his—and everyone’s—thinking about the settlement’s “momentum.”

Conclusion

I have mixed feelings about these class-certification issues. On the one hand, I’m not a fan of the way that the secret negotiations that produced this deal left out all sorts of important public interests, or that the voiceless orphans were hijacked in the class definition to provide support for some of the settlement’s more objectionable provisions. On the other hand, making books and book search available is a great social good, particularly for those same orphan works. Like the DoJ, I don’t want to lose the momentum toward finding a good, public-serving, solution. And also like the DoJ, I’m willing to consider class actions as way of finding such solutions.

Researching class action law, and this class action in particular, has made me more aware of both sides of this issue. I have a clearer sense of the tenuous claims of class counsel to legitimacy—but I also have a clearer sense of how they’ve used their privileged position to make the good things in the settlement possible in the first place. There are important questions that need to be aired, and important bugs in Settlement 1.0 that need to be fixed, but the dangerous possibility that everything could fall apart is very, very real.

I hate to be the guy who says “I told you so,” but I would like to point out that my Principles and Recommendations post was dated November 8, 2008. That was six days before Judge Sprizzo certified the class, and almost two months before the notice period commenced. The core antitrust issues that are tripping up Settlement 1.0 now were all in there. If the settling parties had redrafted the settlement then, they wouldn’t be in the position of trying to produce Settlement 2.0 while taking heavy enemy fire. Yes, there would still be objections about all sorts of things, some of them going to the heart of the settlement itself—but there wouldn’t also be the huge procedural risks associated with renegotiating the deal on the fly while the approval motion is pending.

That’s another risk of closed-door negotiations, of structuring your procedure in a way that reduces participation. It’s not just that you might structure the deal to benefit only the people in the room. It’s also that you end up missing bugs that others might have caught. Settlement 1.0 is buggy; I hope it’s not too late for the patch.

Rather than close on such a somber note, let me put in another plug for D is for Digitize. Our doors are open; all are welcome. Regardless of what you think about Settlement 1.0, the common enterprise of connecting writers and readers unites us. We want to have a constructive conversation about Settlement (or Legislation, or what-have-you) 2.0. What should be in it, what shouldn’t, and how do we get there? We’ll see you October 8–10, at New York Law School.

Since the photographers are now excluded, they should file a new action of their own against Google and move to consolidate it, as a related case. The same is true for the music publishers who filed objections. Its been no secret that while the Authors Guild wanted to set up a rights registry and a worldwide e rights licensing scheme, the publishers side had and continues to have more weight at the bargaining table with Google than the AG. That is because the publishers, not the authors, control millions of e rights for recently written books and for all future books passing through their hands.For these works, they dont care what is in the Settlement because they by pass it in the Partner Program. In the current negotiations, the DOJ is supposed to be asserting the public interest not just on anti-trust concerns but also for those expressed by the Copyright Office at the recent Congressional Hearings. The implications which I get from your review and analysis, is that despite the involvement of the DOJ,the current negotiating lineup is unlikely to produce a framework for e publishing and authors copyright licensing that will transcend the narrow interests of the AG, its bonanza fee seeking lawyers, and the most crass, venal mega-media publishing companies, of which Google itself appears to be only the newest example.

Sigh. Well, that was a very long winded discourse of a very simple problem at hand.

I worked in Class Action law for over 6 years, so I guess that gives me a leg up on understanding the issues.

It was my job to explain Class Action Notices to Class Members, and generally I never had one over 8 pages to digest, so as soon as I saw the Google Book Settlement Notice I knew this Settlement was doomed — but I was also frightened as I knew most Settlements are approved, and the road from there (last May) to here would be frought with many twists, turns, rocks, and potholes.

I’m going to take this time to congratulate all the Objectors, Opposers, Opt Outs, and Interveners — CHEERS!!! We did it!

As a Class Member (I’ve since Opted Out) I had the added incentive to understand the issues.

A simple perusal of the docket (and anyone with any legal experience can comprehend the activity) reveals that there was no litigation, only negotiation, and a CLASS CERTIFIED FOR SETTLEMENT PURPOSES ONLY. This is a little unusual, but not unheard of, when parties are particularly motivated by GREED (lots of carrots and sticks and donkeys here - and yes I’m talking about the $30 million for Plaintiffs’ counsel and the $35 Million for the Author’s Guild and their involvement in the Artists’ Registry).

I’ve said it before, and I’ll say it again — “If you can’t legislate, you litigate, if you can’t litigate, you negotiate.” That, my friends is what happened here. And Google put together a hellavu sweetheart deal for themselves through negotiation.

So, EVERYONE WANTS A PIECE OF THE ACTION, right?

The ASMP Objectors took what I call the “jilted lover” approach. They stated that they were used, abused, kicked to the curb, and then asked the judge to make their evil ex take them back. Silly maybe, but the goal is to get to the negotiation table, and they are sticking to their sad plan. I don’t think it is going to work, but you never know, every day brings a new development in this Settlement and is certainly entertaining to say the least. Kinda like an episode of Jerry Springer.

Nothing the NWU does surprises me. They totally come out of left field, and do bizarre stuff like petitioning Al Gore to use his influence with Google to postpone the final hearing. I like their initiative, and the Authors’ Guild has lost all credibility as class reps, so at least this adds to that discussion.

As for Irving Muchnick, his case doesn’t involve Google, does it? Why would the judge want to let him in? It just doesn’t make sense, but again (like my mentor always said) “It is better to be looked over, than to be overlooked.”

One thing does make sense - and it is the one thing all of these folks seem reluctant to do. Has the little light bulb gone off above your head, yet?

The calls that you mention for better representation and inclusion in the negotiations of creators (authors, illustrators, photographers, etc.) were also echoed in the statement of ASJA President Salley Shannon in response to the DoJ filing: “Give all stakeholders a seat at the table.”

Some entities liked the results of Settlement Proposal 1.0 (although it has all the flaws typical of an alpha version that hasn’t yet been exposed to a public beta — Google more than anyone ought to want more stakeholders at the table, to avoid unnecessary blunders like many of those in Settlement 1.0 that could have been avoided if more stakeholders had seen the draft and anticipated how it would collide with the existing diversity of publishing and copyright contract use cases). But reading the filings, I noticed nobody coming forward to defend the adequacy of class counsel’s representation of the interests of the totality of the class.

The parties are not motivated to let any of us in, they are too busy putting out fires (the DOJ is like a SoCal wildfire bearing down on them), and trying to protect their precious Settlement, i.e. MONEY. Sure, we all see ourselves as rallying Volunteer Fireman circling to save the day, but let’s be real — our motivations our not purely altruistic, either.

I know I have a habit of beleaguring the metaphors, but their position will be “too many cooks spoil the broth”, and besides that, those cooks want to be paid.

Had the Final Settlement Hearing happened, Plaintiffs’ counsel would have briefed the court on the adequacy of their representation. Trust me, I’m certain they think they are doing a FINE job (I mean, why else would Google pay them $30 Million dollars? Yes, I’m being facetious).

Of course, that is why they moved to have the Final Settlement Hearing adjourned, and to save their Settlement, and their face.

Sorry to post so much, I just got my computer out of the shop and it feels good to be online again.

I have a different take, I suppose, in that I don’t see ANY settlement that goes beyond settling the actual past infringement as desirable.

Before Boni and the writers’ organizations starting trading away the future rights of class members, in both Reed Elsevier and now Google, all us writers operated under the assumption that copyright law protected our work from being exploited without our express consent. That IS the whole basis for these class actions, isn’t it, that we have the right to control our work and the right to damages when others make use of it without our permission?

So, how is it that, whenever Boni and the Authors Guild get involved, under the guise of protecting our rights, they give those rights away to the very folks who are accused of infringing?

No matter what Grimmelmann, the DOJ and others may believe about the ultimate benefit of access to all that intellectual property, let’s not forget that it IS the property of someone else. Actually, it’s the property of perhaps millions of someone elses.

And only Congress, as imperfect as it is, should get to decide whether the rules ought to change, so that anyone but the owners get control, and under what terms.

Settle the past infringement cases and then go to Congress for a solution if the consensus is that one is necessary.

• Anita Bartholomew

Me again. Anita I second that emotion. THAT is the only real settlement that will work — the one that addresses the VERY SIMPLE ORIGINAL COMPLAINT - COPYRIGHT INFRINGEMENT.

And, to put it even more bluntly — I would like the blind gentleman who keeps showing up as a sympathetic figure in the Congressional hearing and as a supporter of the Settlement to get better access to information, but NOT BY ROBBING ME BLIND!!!

Copyright infringement does NOT benefit society — it WEAKENS IT!!!

All Google had to do was ASK the copyright holders and get their permission, BEFORE they scanned our work. But they didn’t do that, they stole my work, so they could exploit it and make more money for themselves.

Anita, it is MY property — it is not an ORPHAN! Just because my book is out of print, did NOT mean I abandoned it!

Okay, I know you are all tired of this, but here goes.

It is like my child was walking to school (when I was a child I walked two miles to school by myself) and it was kidnapped. Worse than that, my baby was then sold into white slavery, ultimately to be sent out on the street to turn tricks.

So yes, if you think I am being dramatic, well, I say my book is my baby, and I am fighting to get my book back home where it belongs, safe and sound.

I was not being irresponsible when I sent my book out into the world, I simply trusted (like most of our parents did) that society was not full of the kind of evil that steals, kidnaps, perverts, and exploits.

So when I said many posts ago, that there is only one Settlement that will work, and it is very simple, that is what I was getting at.

The parties MUST make a good faith effort to DIRECTLY NOTIFY the copyright holders of the books they scanned, and they must ADEQUATELY COMPENSATE us for our damages.

Regarding ADEQUACY of Counsel, AND Adequacy of CLAIMS ADMINISTRATOR, Rust Consulting. I promise this is my last post today, but it is something that really chaps my hide and needs to be addressed.

When you OPT OUT online at the Claims Administrator/Settlement website, you get absolutely NO notice that your OPT OUT was in fact received and is being processed.

I was so outraged at this fact, that I called Rust Consulting to verify that the Opt Outs had no way of knowing if their Opt Out was successful. And, I was told that “Yes, we have no bananas.”

This is important, because now, with no Final Settlement Hearing, we may never know how many Opt Outs Boni & Company and Rust Consulting care to acknowledge.

Considering the parties have no intention of notifying the class of the Settlement to begin with, I don’t why a sloppy accounting of Opt Outs should surprise me …

This nugget of information or lack thereof, should open the door a little further to allowing ADEQUATE Counsel and Class Representation to enter that backroom.

Just for the record, after I opted out online and it was clear there wouldn’t even be an e-mail confirmation, I opted out again by mail at the deadline and requested written confirmation; it arrived less than a week later.

James, thank you for a very informative and important discussion of the issues associated with a class action. Question: Irv Muchnick’s case as I understand it rests on the inclusion of unregistered works in the settlement, but the Google settlement specifically excludes unregistered US works as well as periodicals. I would have liked to have seen the Google settlement delayed until after the case was settled in the event that Google could have included unregistered works, but it seems odd to try to mix the two issues now. Comments?

I am surprised by the vehemence of some of the authors who have commented on this thread. For almost any author, GBS is a great deal. First, they get paid for the initial scanning even though there is a strong likelihood that the court would have found this to be a fair use, requiring no payment to the copyright owner. Second, the average cost per title of a consumer purchase is initially going to be over $8. Compare this amount for a book that is of little commercial value (i.e., it is out of print) and that can only be viewed online to the $10 for a current bestseller from Amazon that can be downloaded to a local device. If Google can get this for these titles, it is a tremendous deal. And there are no agent costs associated with getting that money. Third, the provisions regarding rights ownership seem particularly author-friendly, with authors able to claim 50% of rights regardless of what their lost contracts might say. Lastly, any author who thinks these aren’t good terms can remove their books from the settlement, and it is as if the settlement had never occurred. There is no seizure of copyrights, no declaring works orphans, no insult to copyright. What’s the problem?

No matter how I crunch the numbers, I don’t see Google making any money from GBS - it only looks like costs. The big appeal is that GBS would sweep in all of those works that have been forgotten. If this turns into a simple infringement case, I hope that Google chucks the whole thing and goes back to its book-indexing program only, which the court will find to be a fair use and won’t cost Google a dime (beyond their huge investment in digitizing).

“I don’t see ANY settlement that goes beyond settling the actual past infringement as desirable.”

I am with Anita on this, one hundred per cent.

Peter you stated:

If this turns into a simple infringement case, I hope that Google chucks the whole thing and goes back to its book-indexing program only, which the court will find to be a fair use…

I disagree, I believe Google & Company (the libraries that supply Google with in-copyright works) would be found guilty of copyright infringement. In 2008 the Section 108 Study Group; (“a select committee of copyright experts charged with updating for the digital world the Copyright Act’s balance between the rights of creators and copyright owners and the needs of libraries and archives.” as the group is described on their web site) produced a report that states:

Machines read and render digital content by copying it. As a result, copies are routinely made in connection with any use of a digital file. While these copies may be temporary or incidental to the use, they are considered “reproductions” under the copyright law for which authorization is required absent an applicable exception. (Introduction, Page 6, Second “bulleted” item)

The act of the commercial partnership of the University of Wisconsin and Google in digitizing my “Fevens, a family history”,without my authorization was illegal.

Douglas Fevens
Halifax, Nova Scotia
The University of Wisconsin, Google, & Me

Peter, let me explain.

First, you say that, “Irv Muchnick’s case as I understand it rests on the inclusion of unregistered works in the settlement”. Muchnick’s objections were to the adequacy of representation, the fairness of the settlement, and the allocation of the settlement funds. The 2nd Circuit didn’t reach those issues, which are likely to remain on remand, regardless of which way the Supreme Court rules. The issue of jurisdiction over unregistered copyright was raised sua sponte by the 2nd Circuit. None of the parties, including the objectors, agreed with the 2nd Circuit, which is why the Supreme Court had to appoint amicus counsel to argue in the Supreme Court in support of the 2nd Circuit decision.

Second, you refer to “a book that is of little commercial value (i.e., it is out of print)”. In fact, many such books are of commercial value to authors but not necessarily to publishers. Authors are often getting revenues from those works by licensing them for distribution as e-books (Google’s own partner program already offers more favorable terms than those in the proposed settlement), self-publishing them (most often, perhaps, as PDF e-books sold through authors’ own Web sites), or by incorporating content from “out-of-print” books into authors’ revenue generating Web sites (with the revenue coming mainly through advertising. It’s not clear that any of these would constitute “commercial availability” as defined in the settlement, but they can mean real money — better money than the proposed settlement — to authors.

Third, you say that “there are no agent costs associated with getting that money”. In fact, both the Book Rights Registry and publishers will act as (involuntarily imposed) agents for authors in receiving money, taking cuts that have yet to be determined. Nobody knows how much the BRR will cost. Many author-publisher contracts allow publishers to deduct their “expenses” before passing through authors’ shares of licensing revenues. Because payments to authors will be made through publishers, it’s unclear if authors will receive anything at all if their publishers can’t be found — e.g. if the publisher simply ceased trading without explicit assignment of its rights, assuming that because its books were no longer in print there were no rights of significance. Orphan (unfindable) publishing companies are probably much more common than orphan authors, because of the available resources for finding people and the lack of records of dissolution of e.g. sole proprietorships or small partnerships or corporations. Authors whose books were published by orphan publishers would be SOL under the proposed settlement, especially since the settlement procedures for “reversion” of rights require the author to give notice to the publisher before rights are “reverted” — regardless of whether e-rights were ever assigned to the print publisher. It’s ironic, and revealing, that authors are required under the proposed settlement to track down and notify orphan publishers, but Google is given no comparable obligation to track down or notify orphan authors.

Fourth, you say that, “any author who thinks these aren’t good terms can remove their books from the settlement, and it is as if the settlement had never occurred.” That’s simply not true, although your mistake is understandable since this is the biggest lie the parties have been telling about the proposed settlement. Only those authors who are determined under the procedures of the settlement (arbitration by a body and under procedures yet to be determined by an entity that doesn’t yet exist and whose structure makes it likely to be captured by publishers at worst, disfunctional at best) to hold copyright or “the” (singular) “exclusive” rights are considered “Rightsholders” for settlement purposes. Many authors who actually control some or all of the relevant rights, but who hold conditional, time-limited, geographically-limited, otherwise divided, or explicitly non-exclusive rights will not be considered Rightsholders at all, and will have no control over the use of their work by Google. And if they failed to opt out by the deadline, but later wish to exclude their works, their consent to the settlement procedures for resolution of author-publisher disputes — including their waiver of the right to sue their publisher in favor of consent to individualized, secret, binding arbitration, under rules and procedures to be set by someone else — is irrevocable.

As an author vehemently opposed to the Google Book Settlement, I offer the following answers to Peter’s points:

i) “First, they get paid for the initial scanning”

Not much, compared to the sums paid for copyright licences (even for extract licences). Moreover, if you are a foreign author, unless you are quite prolific and Google have digitized a lot of works to which you own the full rights, much or even all of any fee payable for scanning might well be swallowed up by the legal costs of arranging to be paid. But in any case, the sums offered by Google under the settlement agreement would not begin to pay for an author’s (or his/her lawyer’s) time spent fathoming that long, turgid, tricky document.

ii) “a book that is of little commercial value (i.e., it is out of print)”

Out of print certainly does not equal ‘of little commercial value’. I am seeing this kind of remark in many places from supporters of the GBS, and frankly, the suggestion is inadmissable rubbish.

In the case of books that are out of print for a year (the time the GBS agreement took as definitive): that means nothing at all. It can take well over a year for an author to get the rights back from the publisher, let alone arrange for a reprint. If the author wants to take the opportunity to revise the text, it takes longer still, of course.

Sometimes non-fiction books are kept out of print in order to enhance the sales potential of a new work on a similar subject by the same author. You may not like this system: I don’t myself, though I can see the commercial arguments. But my point is that the rights in those works remain potentially valuable, and if the author’s work sells well, they may be put back into print at a later stage in the cycle.

Few authors achieve success on first publication. Rights to an author’s out-of-print works may acquire new value if, for instance, he or she wins a literary award or writes a best-seller, or simply acquires a loyal following of readers.

Sometimes a new cultural trend brings value to works that have been long out of print. The women’s movement had this effect when, in the eighties, London’s Virago Press reprinted large numbers of in-copyright works by twentieth-century women authors, many of them half-forgotten.

Even works that have been long out of print and are apparently of little interest may attract windfall sums for extract rights or anthology rights on occasion. And most authors don’t make so much that such sums are unimportant.

iii) “the provisions regarding rights ownership seem particularly author-friendly, with authors able to claim 50% of rights regardless of what their lost contracts might say.”

Unless the work was written ‘for hire’, it is safe to say that on nearly all pre-twenty-first-century publications, whether the contracts are lost or safely filed, authors will typically own 100% of the US digital rights: as established in the Rosetta Books case.

iv) “Any author who thinks these aren’t good terms can remove their books from the settlement”

Under the GBS agreement, an author who owns the rights to a book might remove it. However, a poet, essayist or short-story writer whose work has been published in anthologies or multi-authored collections is denied this right. This distinction is not based on copyright law, under which a sonnet (rightly) enjoys just the same protections as a blockbuster.

v) “and it is as if the settlement had never occurred”

Except

a) for the other disadvantages of being opted in to the provisions of the settlement agreement: no recourse to the courts in case Google fails to act on your instructions; the very broad releases highlighted by Edward Hasbrouck; loss of control over any trademarks (see p. 3; also the Objection of Arlo Guthrie et al, pp. 7–8;);

b) for the very considerable time and hassle involved in first, understanding all 350 odd pages of a complex and obscurely worded legal agreement, and secondly, finding and claiming works on Google’s reputedly inaccurate, buggy database.

On this final matter, let Google have the last word:

Our … trademarks, … copyrights and other intellectual property rights are important assets for us … protecting our intellectual property rights is costly and time consuming. Any increase in the unauthorized use of our intellectual property could make it more expensive to do business…

Ed, it strikes me that your concern about the Rightsholder catch-22 is something that Settlement 2.0 might be able to address. Would a revision that explicitly and unambigously defined all authors as “Rightsholders” for purposes of Removal and Exclusion satisfy your concerns? Would you like an explicit statement that an author who is determined not to be a Rightsholder is not bound by the settlement? What would it take to answer this concern?

There are places in which the settling parties and their critics are very far apart, but this particular objection strikes me as one that could be patched. It would take a mixture of clearer drafting, compromise, and institutional design, all of which seem potentially achievable.

So, could someone give me a very clear and CONCISE rundown of the Muchnick case, from the original Settlement to now?

I read the SA, and it seems like a typical bullsh*t settlement rewarding the lawyers and defendants, but hey, what’s new?

It looks like at one time the AG, the NWU, and the ASJA were all plaintiffs and represented by Boni — and, I’m guessing there was a fallout somewhere …

Would anyone would like to fill me in? … and please, keep it SHORT. A simple timeline and a scorecard to identify the players and their motives would be nice.

Again, I understand the original Complaint and the Settlement.

Just because a book is out of print does not mean it doesn’t have value to the writer.

Also, at the risk of overstating the obvious, scanning is copying.

A book can only begin to be catergorized as an “Orphan” (oh, how I HATE that term) if and when an attempt is made to contact the rights holder. Presently, Google has no intention of contacting any class member/rights holder.

The Settlement should be “Opt In” NOT “Opt Out.”

Google has to make a good faith effort to contact the rights holder of every book they have scanned.

Google can work with only the Opt Ins, they must delete all other works from their program.

Google must adequately compensate those who choose not to participate in their program.

The Books Rights Registry could exist to service only those Opt Ins that choose to deal with it. (Personally, I wouldn’t touch it with a ten foot pole.)

Taking those proposed changes to the Settlement into consideration, you can see why Google does not want to have to notify class members. The notification issue alone is enough to destroy the Settlement (any version), but of course it MUST be dealt with. It won’t be cheap to track down 7 Million rights holders, but I think Google can afford it.

I wrote “catergorized?” Actually, that is pretty funny, but I did mean “categorized”. I guess you knew that. Anyways, I want to comment on the “Free Culture” group.

Seems like a bunch a kids that are pissed off Napster was shut down.

Yeah, and I’m an old fogey, or worse yet, METALLICA!

The point I’m trying (probably poorly) to make is that everyone thinks free access and using other people’s stuff is fine and dandy until they are the ones that get ripped off!

You think using your roommate’s toothpaste is cool, but all hell breaks loose when he drinks your beer.

It’s simple human nature, and it is as simple as “thou shall not steal.”

Napster was wrong, GBS is even worse.

Here is why I love this blog - the respondents are knowledgeable and thoughtful even when they are confused.

Edward: I may not have been clear. When referring to the Irv Muchnick case, I was referring specifically to the case before the Supreme Court. And as I read the petition, it appears only to be about the jurisdictional issues surrounding the inclusion of unregistered works in the settlement. So again, I am the one confused. Since unregistered works and jurisdictional issues are not im play in GBS, how can Muchnick think the two can be equated?

Doug, in your quote from the 108 Study Group, you include the limitation “absent an applicable exception.” Fair Use is such an exception. If copying your copyrighted work for indexing purposes was illegal, then the Google search engine would also be illegal (since it copies entire copyrighted web pages to build an index). The problem with the Authors Guild and AAP is that they jumped the gun with their suits. They should have waited until Google tried to do something questionable with the scans.

The responses from Gillian and Mary Lynn show the difficulty that the plaintiffs and Google faced when trying to draft the settlement. The plaintiffs know about one type of publishing; the authors responding to this post know about another (one that they wish to exploit); and most of mine is spent with a third - academic authors who sign over all rights to publishers in perpetuity unless some ill-formed termination practices are followed when a book goes out of print.

If we agree with DOJ that in principle having full-text access to millions of books is a good thing, then the question becomes how to make sure that those authors who want nothing to do with this can opt-out entirely or only have their books indexed but not displayed, while at the same time allowing Google to sell access to the expression in all other books on behalf of authors who don’t think that they can work a better deal on their own (and that will be most of the authors represented in the database, I bet).

We all have problems with the details of the settlement, but let’s not lose sight of the big picture: Google tried to figure out a way to get the Authors Guild and the AAP to agree to allowing full-text access to millions of out-of-print books while at the same time respecting the limited set of rights owned by authors who don’t want to be part of the settlement. The opt-out, removal, and non-display options of GBS, along with the procedures that can be followed when ownership of the rights are unclear and might otherwise prevent access, seems to me like an honest, reasonable attempt to reflect the wishes of most of the rightsholders in this incredibly broad and diverse class.

Peter,

I think you may be missing a point or two. One, we can only Opt Out if we know about the Settlement. I’ve said it before, and I’ll say it again, DIRECT NOTIFICATION must be done.

Two, Google is not in this to make money on selling access to books, 98 percent of their income is ad revenue. They make money off the ads posted on the pages that show the content they have stolen. Even a snippet of my book will make them money. Not exactly fair use. That is the point I am trying to make about kidnapping my little darling, and pimping it out.

As for Muchnick, which I am now just trying to understand —the Supreme Court will be ruling on whether the District Court has jurisdiction over unregistered works. Simple enough. GBS involves registered works, and different parties, therefore not really appropriate to combine the two.

If you back up though, Muchnick successfully appealed the Original Settlement, and that is what makes this interesting. I want to know what really happened between the plaintiffs and counsel.

If NWU, ASJA, AG, Boni & Company, and Muchnick would care to chime in on this facet, I would be fascinated.

So, you have a money grab breaking down, and a bigger money grab breaking down. The decision on one sets a precedent for the other.

Just maybe, this is what Scott Gant has in mind with his weighty Objection… an eventual appeal?

Of course with the Settlement in constant flux, we have a long way to go and more rounds of Objections before any version of the SA is approved.

Another interesting note is that Judge Chin has been nominated for the Court of Appeals.

Another belabored point regarding the online Opt Out process.

Michael realized he wouldn’t get on online confirmation of his online Opt Out and followed up with a hard copy.

That’s great, but this is a case about online access and activities.

It speaks to the very heart of the matter. If Google, Plaintiffs’, Plaintiffs’ Counsel, and the Claims Administrator can’t honestly and efficiently handle a simple online procedure like an Opt Out, can they be trusted to run GBS and the Books Rights Registry? I think not.

The devil really is in the details.

Is this site funded by MICROSOFT? The disclosure says no, but this article says yes. “The New York Law School is launching a web site dedicated to the Google Book Search settlement that will include discussion forums, a comprehensive archive of settlement documents and related commentary, and a tool for users to insert their own analyses and commentary on individual paragraphs of the proposed settlement. The project, dubbed “the Public Index” is part of the Public Interest Book Search Initiative overseen by NYLS professor James Grimmelman, an expert who has written extensively about the deal. The effort will be staffed by NYLS students, and is being underwritten with a grant from Google competitor, Microsoft.”

Please explain.

Mary, this is my personal blog. I am solely responsible for what appears here, and I pay all the associated costs out of my own pocket. My disclosure statement explains in more detail.

The site you are thinking of is The Public Index. That site is run by a team I head at New York Law School, and Microsoft is a funder of the project. Their money is used to do things like pay for the programming time, support the students who upload documents and watch for spam, and pay to print the programs for D is for Digitize. Microsoft has no editorial control over the work we do, and I have no financial interest in it.

“The plaintiffs know about one type of publishing; the authors responding to this post know about another (one that they wish to exploit); and most of mine is spent with a third - academic authors who sign over all rights to publishers in perpetuity unless some ill-formed termination practices are followed when a book goes out of print.”

Actually, I know a fair amount about several different sorts of publishing: including academic publishing. I have never liked that practice followed by some academic publishers of demanding all rights in perpetuity. I don’t see the justification for it and I avoid publishing under those terms.

I wish to retain my control over my out of print works for various reasons: the ability to continue to exploit them commercially, in cases where that is possible, is only one of those reasons.

I care where my work appears: and I don’t care in the least to see it juxtaposed with advertisements over whose content I have no control. Still less do I care to see it licensed by Google without reference to me for the use of third-party websites.

I also care how it is presented: and I don’t wish to see it in fuzzy scans, and/or uncorrected OCR text, with any images obscured or omitted.

Amen, Gillian. Google Books is horrible — products that have stolen my trademark are sold alongside terrible scans of my book. Books are shown upside down — yep, UPSIDE DOWN — I call it SKOOB ELGOOG. The library project is an offshoot (even though Google will argue that the Google Partner Program is just that — authorized and fair use) of Google Books and WILL be used for ad revenue. That is Google’s business model, and make no mistake this is not for the Public Good, it is ALL ABOUT THE BENJAMINS.

As for academic publishing, Thomas Reuters opted out on behalf of their writers. Ironically, these include many prominent Class Action attorneys who would most likely defend Plaintiffs’ Counsel in this case, simply to protect their own bullsh*t settlements. Lawyers are thick as thieves, plain and simple.

And on that note, I think it best I don’t use this forum anymore. In all honestly, I am not comfortable with Microsoft funding the sites this site is linked to.

Many of us are in favor of transparency in this settlement, but a disclosure on this site that says it is not affiliated with Microsoft, but continually pimps a seminar, and website funded by Microsoft does not cut it in my book.

The agenda here is not that Google did wrong, and the GBS should address those concerns, but that Microsoft should be able to rip us off as well.

That just doesn’t sit well with me.

Adios, amigos.

Mary, my agenda is to get at the truth, to promote public understanding, and to advocate for healthy copyright policy and the rule of law. Let me repeat that Microsoft has zero editorial influence on my personal blogging and the Public Index.

As for disclosure, the Public Index about page also notes the Microsoft grant. The D is for Digitize sponsors page doesn’t mention it yet, but we’ve been pulling together a lot of other things to make the conference happen, and it’s on the list of things to do this week. Microsoft is a funder for the conference, and so is the American Library Association. Neither of them had any control over the agenda, which includes every point of view I’ve been able to track down.

I suppose that I have been “pimping” for the conference, but I’ve put six months of my life into organizing it, and I would like it to be a success. It’s a really unparalleled chance for productive dialogue, and that’s the spirit behind everything I’ve been doing on the settlement. I hope I can convince you not to remove your voice from this conversation.

I’m sorry James, but I’m not buying what you’re selling.

I’ve spent at least 4 of the past 8 years working on my book, four of the last 8 years promoting and (I thought) protecting it, and the last four months (when I became aware of this Settlement) trying to wrestle it back from Google’s clasp.

I reckon that fight will be a long, protacted one.

I have no money, and no grant — only the will to see some sort of justice prevail — I may be charging at windmills, but I prefer to try to sleep at night knowing I fought a good fight.

Writing is very often not glamorous, or monetarily rewarding — it can be very lonely — but it can also have its rewards.

Most lawyers are excellent writers, but their motive is usually perverted by their connections.

I think I’m done here.

Peter, you say that, “When referring to the Irv Muchnick case, I was referring specifically to the case before the Supreme Court.” But the issue now before the Supreme Court (on which Muchnick, the other objectors, and the parties are all on the same side) is quite different from the issues Muchnick and his co-objectors raised, which the 2nd Circuit never reached and that are likely to be on the table again on remand, regardless of which way the Supreme Court rules on the (different) issue it is now considering. The other issues remain part of the case, they just won’t be considered until the next round, after the Supreme Court ruling. I think it’s the issues Muchnick raised, not the issue the 2nd Circuit raised sua sponte and that is now before the Supreme Court, that have more in common with the issues in GBS. For more, see the blogs of Muchnick and his co-objector Anita Bartholemew (both of whom have written publicly that while they objected in Reed Elsevier v. Muchnick, they opted out of GBS).

James, you ask whether a Settlement 2.0 that “explicitly and unambigously defined all authors as “Rightsholders” for purposes of Removal and Exclusion [would] satisfy your concerns” that many actual holders of rights will not be found to be “rightsholders” under the proposed settlement?

The short answer is, “no”, nor is “this particular objection … one that could be patched.” I’ll try to give a fuller explanation of why tomorrow, after I meet some deadlines for the (revenue-generating) writing I’ve been forced to take time from to deal with Google’s theft of my rights, and the Authors Guild and attorney Boni’s attempt to sell us out for 30 million pieces of Google’s silver.

Peter said, “Fair Use is such an exception. If copying your copyrighted work for indexing purposes was illegal, then the Google search engine would also be illegal (since it copies entire copyrighted web pages to build an index).”

Peter, I am a layman and can only speak to my experience of discovering my work being commercially exploited by the University of Wisconsin in partnership with Google. Google & Company are a de facto commercial enterprise and as such voids the library’s privilege under Title 17, Chapter 1, [PDF] Section 108 of the United States Code to make copies of a work contrary to Article 1, Section 8, Clause 8 of the United States Constitution. I consider their product from the digitizing of my “Fevens, a family history” as “digital printing plates” and far from acceptable “fair use”. They can call their product whatever they want (e.g. “Card Index”),but, they still have in their possession illegal digital printing plates of my work. Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

Peter said: “If copying your copyrighted work for indexing purposes was illegal, then the Google search engine would also be illegal (since it copies entire copyrighted web pages to build an index).”

It is illegal. Google’s opt-out for website indexing (the robots.txt protocol), and it’s opt-out for showing cache copy links (the noarchive meta), have been disputed for years by webmasters who claim that this is infringement, and should be opt-in instead of opt-out. The difference between the web and books, is that books have been around for hundreds of years, while the web has been around for about 15 years. There are associations of authors, publishers, and librarians who have evolved over past decades to protect their interests, while there are no associations of webmasters. You can sue Google as a solitary webmaster, I suppose, but you wouldn’t stand a chance going against a corporation with a $158 billion market capitalization. First you’d have to organize webmasters. That won’t be easy either, since most of them depend on income from Google’s AdSense.

It’s all about money, much more than it’s about equal application of the law.

The current United States legal rule for search-engine indexing on the web is opt-out, that’s a good thing, and the decisions reaching that result are legally correct.

Flipping the rule to opt-in would have the effect of insulating Google from competition. As the leading search engine, it has a lot more ability to convince webmasters to grant it indexing permission. New search engines would have an almost impossible task acquiring the necessary permissions to get a big enough index to take on Google. Going to opt-out would also make all search engines—Google and its competitors alike—much less useful.

On the contrary, James, I believe that opt-in would encourage the evolution of nonprofit and/or public-interest niche engines that are sick of Google’s habit of polluting everything with ads, as I argued five years ago.

I love this blog too - & am sufficiently provoked by it to contribute my own two cents worth.

I am a New Zealand citizen & a New Zealand writer. My books are published by New Zealand publishers. My copyright is protected by the NZ Copyright Act & the Berne Convention (or so I thought). There are two primary copyright infringements under NZ law - copying, & distribution. Scanning entire books without the knowledge or consent of the copyright holder is an infringement of the first order, regardless of the purpose of the copying. The fair use claim would not stand up here.

Google has pirated 3 of my books. All 3 are in print. One of them is commercially available in the US. Google has made no attempt to contact me - before, during or after the GBS. It’s not as if I’m difficult to find. I have a webpage. My publishers have webpages. My address & phone number are in the telephone directory. My house is visible on Google satellite (they know where I live!). If Google had spent a fraction of the money it has spent on illegal copying on tracking down the copyright holders, it would have had no trouble finding most of us. Clearly, Google doesn’t give a toss about copyright - so why should we trust Google to do the right thing now?

Most members of the NZ Society of Authors know about the GBS, but those who have been ill or out of the country in recent weeks do not. Most NZSA members have either assumed the GBS does not concern them, or have done nothing about it because the whole thing is just too hard. Most non-members of NZSA (academic authors, authors of local histories or other specialist topics) do not know about the GBS. As a consequence, GBS 1.0 would gift Google NZ’s entire literary culture & heritage for its own financial gain.

NZ libraries & archives are developing their own digital collections. These are under the control of experts who understand the content & context of the work they are digitising, & the needs & interests of the diverse range of readers and researchers who use their collections.

In my view, if Google wants to tear up US copyright law, that’s a matter for the US to sort out, but dragging NZ & the rest of the world under Google’s control is totally unacceptable.

Google’s seizure of the world’s intellectual property is unprecedented. As seizures of private property go, it probably exceeds in scale the worst excesses of Stalin, Hitler, Pol Pot and Robert Mugabe combined (can you tell how angry I am?).

Enough for now. Lynley Hood

James, I found your original comment very helpful. Thank you for posting it.

With apologies to others who left comments,as I’ve only had time to skim them, I’d like to bring up a point and ask your view on how it fits into the larger scheme of things. My point is that there are some photographers who are class members, i.e., those who hold rights to photographs which are illustrations in “children’s Books”.

I don’t know if any of the members of ASMP are are also class members because they hold rights to photos or other pictorial illustrations in children’s books, but I would have thought so. Could ASMP have gotten what it wants by having these class members file objections?

Getting back to children’s books, I want to bring up the difficulties that photographic & other illustrations could pose in administering Settlement 1.0. In some cases, the rights to the photo illustrations for a children’s book may belong to the author or to just one photographer. However, many non-fiction books for children include numerous photographic & other pictorial illustrations that were collected from a variety of sources. Typically, the authors/publishers will have purchased only the rights to use the photos in single print editions. Thus, in Settlement 1.0 terms, there could easily be a children’s book that has an author rights holder and numerous holders of rights to “inserts” who are photographers.

Like you, I hope that somehow someone can work out a way to make the huge collection that Google has scanned available online and free the orphans. However, because Settlement 1.0 does not define “children’s Book” and it does not make any provision for offering Public libraries or school libraries licenses that are limited to children’s books, I am concerned that even if Settlement 2.0 somehow gets approved, and we get the Biggest Library in History, it won’t have a Children’s Section. Or that the library will have a children’s section, but only kids who will get into will be the ones with well-off parents.

Irv Muchnick is pushing the same line again today: Google Books, Freelance Settlements Equally Stalled - and Inextricably Intertwined. It seems to me he makes himself clearer than he did in his letter to the Attorney General.

It hardly needs saying that I do not share his belief in the need for “default or ‘compulsory’ licensing” of authors’ work. It wouldn’t please Mr Fevens, either. Once again, a solution that may possibly work tolerably well for one group of writers, in this case freelance journalists, is being proposed as a universal system to be imposed on all of us.

To quote Scott James’s Open Letter to Judge Chin:

“Writers! – a ‘class.’ … What’s next? All bakers? All plumbers?”

Meanwhile, Muchnick commented on the present blog entry on his own blog on Saturday. I think something has gone a bit wrong with his final paragraph; at least, I am still furrowing my brow over it:

Just as there is “no” evidence of willful infringement by publishers, there is “every” chance that my letter to the attorney general can help move the ball down the field.

Irony is a tricky figure of speech.

Going back to Gillian’s Sept. comments about academics signing over full rights: My husband is an economics professor. I don’t know about other fields, but in economics, professors routinely sign over all rights to articles they write to the publisher — which is usually Elsvier.

It is also routine for the professors to infringe on the rights of the publisher, by making their articles available for free as pdfs on the professors’ websites. I believe there is even a site that collects econ articles in one place.

This whole routine baffles me, as does my husband’s response when I ask about it. For him the copyright has little, if any, monetary value. What he wants is a publication in a prestige journal, and if he has to sign away all his rights to get the article published,he is happy to do it. But he seems to see nothing wrong with his distributing copies of the articles he signed away the rights to. Moreover, for some reason, Elsvier has done nothing to stop the economists from giving away the articles. I would have thought that the rights are of value to Elsvier, and that they would not want people giving away what Elsvier is selling. But that does not seem to be the case.

As I said, it baffles me. But who knows? Maybe Elsvier has securitized the rights and sold derivatives based on them. Instead of Credit Default Swaps, Elsvier is selling Copyright Default Swaps.

As I promised, I’d like to expand on my response to James’ question above in this thread of whether a Settlement 2.0 that “explicitly and unambigously defined all authors as ‘Rightsholders’ for purposes of Removal and Exclusion [would] satisfy your concerns” that many actual holders of rights will not be found to be “rightsholders” under the proposed settlement, and whether “this particular objection … could be patched.”

No, and no.

Even if all “authors” were defined as “Rightsholders” with respect to any book of which they were the (or an?) author, there would remain the issues (among others) of (1) who is considered for this purpose the “author” (or authors?) of a multi-contributor work, (2) which rights the (or an) author holds with respect to that work, (3) which of those rights are implicated by which of Google’s “uses”, and (4) how the various categories of settlement revenues should be apportioned among rightsholders (including authors and others) and intermediaries (author’s agent, print publisher, etc.).

There are further questions within each of these questions. For example, under a typical author-print publisher book publication contract, should the author-print publisher division of per-work Google settlement awards (inclusion fees) and/or subsequent settlement revenues be made according to (a) the “book” royalty clause, (b) the “subsidiary rights” clause, or (c) the separate clause of the contract specifying the division of responsibility for copyright infringement litigation costs, and division of infringement and awards and settlements?

Under Proposed Settlement 1.0 (P.S. 1.), all these questions — and not just who is “a Rightsholder” — would be resolved by the Book Rights Registry or through individualized (no collective bargaining or class actions) secret binding arbitration, all by entities and under procedures yet to be created or determined.

(As an aside, that clause (c) typically requires publishers and/or authors to notify each other when they become aware of infringement of the work, and to consult each other before bringing an infringement claim. It’s unclear if the original publisher plaintiffs consulted all their authors before filing the case. But it’s likely that most authors and publishers breached these terms, albeit most authors and many publishers inadvertently, by failing to consult the other party before making a settlement claim. Depending on the specific terms of these clauses in particular contracts, this failure to consult the other party could affect what, if any, share of any settlement award each party — i.e. author and print publisher — is entitled to.)

All of these questions are already the subject of longstanding, ongoing, vehement, financially significant, and often (when the authors can afford it) litigious dispute between authors and publishers.

There is a clear pattern to these disputes: Print publishers have consistently claimed rights and revenue share, particularly with respect to new uses and new technologies, that they didn’t hold at all, or that far exceeded their actual rights. They’ve been sued repeatedly by authors, and they’ve either lost judgments or paid substantial settlements (NYT v. Tasini, Ryan v. CARL, Reed Elsevier v.Muchnick).

On the flip side, there is no record of authors claiming in excess of their rights. The only time publishers tried to claim authors had done so, the court held for the authors (Random House v. Rosetta Books).

Authors know from this ongoing experience that their right to sue their print publishers, with the possibility of statutory and punitive damages, is essential to protect themselves against the proven propensity of those print publishers to assert false claims to hold electronic rights that are actually held by authors . In light of this history, any diminution of authors’ right to sue their print publishers, with respect to any of these issues, clearly favors publishers by reducing the risk and potential statutory and punitive damages if they are caught stealing authors’ rights.

Under P.S. 1.0, what would likely happen is that print publishers would claim rights to every title they had published, without regard to whether they hold any of those rights. Why not? What have they got to lose, with no risk of author lawsuits, only arbitration? Cost aside, the time required for arbitration is worth more than $60, so very few authors will bother to challenge publishers’ claims.

The result would be a windfall of backlist inclusion fees to print publishers for works to which e-rights are actually owned by authors, with only those authors who take their publishers to arbitration likely to get anything.

Even when publishers receive these settlement revenues, they would likely treat them as “royalties” for “book” sales, and pass on to authors only the corresponding small (5-15%) share. Only those authors who again take the revenue split to arbitration would be likely to get more that $5-10 per book — a further windfall to print publishers from theft of writers’ rights, protected from authors’ lawsuits by the settlement.

In my opinion, the worst “abuse of the class action process” in this case is the attempt to use lawsuits between authors and Google, and between print publishers and Google, to resolve (pre-existing and ongoing) disputes between authors and print publishers that weren’t and couldn’t have been litigated or have been the subject of any judgment or award if the cases had gone to trial.

As I’ve pointed out before, whether the conduct complained of was or was not infringement is entirely independent of whether the holder of the rights allegedly infringed was an author, a print publisher, a third party licensee, or someone to whom I lost the rights in a poker game. I can see no legitimate reason for a settlement of these complaints against Google to say anything different about authors or publishers, or indeed to mention “authors” or “publishers” as distinct groups at all.

Any proper settlement should speak only of “rightsholders” without reference to who they are. The absolute minimum modification to P.S. 1.0 that would be required to address this objection is the complete elimination of the Author-Publisher Procedures and any distinction between or separate treatment of author-rightsholders, publisher-rightsholders, and any other rightsholders.

False claims of rights ownership should remain subject to potential lawsuits and statutory and punitive damages.

This is included in one the suggestions attached to the objections of authors Bloom,ASJA, NWU, et al. (along with removal of the Registry, although in theory it would still be possible to have a registry in P.S. 2.0 that treated all Rightsholders the same, which raises other objections I haven’t dealt with here).

Thanks, Ed.

Follow-up question. If all authors had full rights to Remove or Exclude, they wouldn’t need to resort to arbitration; they could simply demand that their books be pulled. The books wouldn’t go back on Google unless the publisher came to acceptable terms with them. Would that satisfy your concerns, or do you think that lawsuits, with statutory damages, would still be necessary to deter publishers from overreaching?

Also, you talk about “statutory and punitive damages,” but punitive damages are unlikely in the situations you describe. The main legal theories in this kind of a suit by an author against a publisher are copyright infringement and breach of contract; punitive damages aren’t available for either.

James, you ask whether, “If all authors had full rights to Remove or Exclude, they wouldn’t need to resort to arbitration; they could simply demand that their books be pulled.”

No.

As I said above, there are still all the questions I listed involved in dividing the $60 per-book settlement award for books that have already been scanned (the alleged infringement that was the actual cause of action, remember) between the author(s) and publisher(s), and the likelihood that print publishers will try to cheat authors out of their rightful share of this money unless authors are able to challenge that theft in court.

These questions about the allocation of the inclusion fee between author(s) and publisher(s) remain, even if the book is excluded from future uses by Google.

There’s also the problem of payments of these awards to authors where former publishing companies are unfindable. The Author-Publisher Procedures, astonishingly, make no provision for direct payments by the Registry to authors in cases of “orphan publishers”, but require that all payments to authors be made through publishers. So authors of books whose publishers can’t be found would get nothing at all, even if they are conceded to be 100% rightsholders.

The Author-Publisher Procedures have got to go. Completely.

(The problem of “orphan books” is obviously much more a problem of orphan publishers than orphan authors. One of the most significant but easiest of smaller legislative steps that could drastically reduce the size of the “orphan books” problem — which ultimately can only be solved through larger legislative measures — would be a statutory time limit on rights transfers and/or mandatory reversion of all rights to the creator after a statutorily fixed period. I suspect that most writers would support a substantial reduction in the term of copyright — the copyright term extensions benefit more publishers and corporations than individual creators — especially if it were coupled with such a statutory reversion and license time limit provision.)

You also assume that, “punitive damages are unlikely in the situations you describe. The main legal theories in this kind of a suit by an author against a publisher are copyright infringement and breach of contract; punitive damages aren’t available for either.”

You are probably right that “punitive damages are unlikely”, largely because authors can rarely afford to sue and would have difficulty getting evidence of collusion among publishers if the publishers only discuss their collusion plans behind closed doors and don’t write them down, but the potential causes of action publishers currently have to be concerned about include antitrust, conspiracy, RICO, and perhaps other claims related to publishers’ possible (likely?) collusion in asserting a common (knowingly false) theory of their ownership of rights that they know they don’t own, or engaging in joint activities to exploit and profit from those stolen rights.

Given the information asymmetry between authors and publishers in contract negotiations, and publishers’ track record, authors have a well-founded fear of such collusion and the need for legal deterrence of it. But yes, I suspect that the more straightforward worry and primary factor keeping publishers from even more brazen theft of writers’ rights than they have engaged in to date has been statutory damages for copyright infringement — they probably figure that wink-and-a-nod collusion discussions and informal understandings arrived at orally during private publishers’ lunches will go unprovable and unpunished.

Punitive damages also aren’t available in civil antitrust or RICO actions. (Both have a treble-damage remedy, but that’s probably not a big enough multiplier to have the posited deterrent effect if actual damages wouldn’t.)

Mr. Hasbrouck touches on something that needs to be addressed in version 2.0 of the settlement, which is the wholesale assignment of electronic rights to publishers.

Publishers, at a minimum, should not be involved in -any- part of the deal for books published before, say, 1985 (and probably into the early 90’s) because e-books were not contemplated and electronic rights were not licensed to the publishers. After that time, publishers should have to demonstrate they have the rights before they are allowed to receive any consideration.

It seems to me highly relevant to quote in relation to the points that Edward is making a sentence from the statement of interest filed by the US Department of Justice: “The Registry is effectively controlled by large commercial publishers.” (p. 22)

A slap in the face for the negotiators for the Authors Guild, a warning to authors everywhere, and a very valuable indicator of how the DoJ interprets the procedures laid down in the settlement agreement.