GBS: Scenes from the European Backlash

Andrew Albanese, Frankfurt Book Fair: Europeans Play the Moral Rights Card Against Google Settlement, Publishers Weekly, Oct. 16, 2009:

There’s been a simmering anti-Google sentiment at this year’s Frankfurt Book Fair, no doubt connected to European objections to the Google Book Search Settlement. And on Friday that simmer reached a boil, as the deal faced harsh—at times, puzzling—criticism at a registration-required panel on “European and American Positions Towards the Google Settlement.” …

For his part, Sarnoff conceded that negotiators of the deal did not anticipate the “doctrinaire” backlash in Europe over moral rights, telling the audience that the parties genuinely thought they were doing something that would benefit everyone. He said that European works may indeed have to be removed from the settlement. (emphasis added)

Unless European books are removed, the GBS will still face French and German government objections, that the DOJ and Judge Chin cannot ignore. Moreover, Google faces copyright infringement cases seeking big damages, pending in France. And what about the works of other foreign authors? Japanese authors have also objected to the GBS.
I think Google once again has stumbled badly in not clarifying and committing on the issue of the GBS/Berne relationship and exclusion of foreign authored books, in advance of the Frankfurt Fair.How long will Google rely on lawyers,middle level managers and internet software engineers to make their case? Maybe they should have sent Al Gore to Frankfurt instead?? Waiting till the Nov 7th court date to announce amendments and concessions that seem obviously needed, does not appear to be good faith by the parties, or in Google’s own interest and image.

This piece sheds a bit more light:

The Federation of European Publishers (FEP) has asked for all European works to be excluded from the revised Google Settlement. The FEP has held face-to-face discussions with the Association of American Publishers (AAP) at the fair to press its case.

… The FEP, which represents publishers associations from 27 countries including the UK, said neither the AAP nor the second plaintiff, the US Authors Guild, “had a mandate to negotiate on behalf of their international counterparts”.

Also from this article: “Sarnoff stressed that the settlement only dealt with books that were out of print, and not commercially available, and thus “not making a dime” for anyone.”

What Sarnoff really means is that books that are out of print in hardcody and are not available from the original print publisher are not making a dime for print publishers.

That’s true, because in most such cases it’s authors, not print publishers, who own the electronic rights (either because they were never assigned, or because they have reverted) and who are both making the work available electronically (through e.g. PDF downloads from authors’ own Web sites, inclusion of content on authors’ Web sites with advertising, or other e-book self-publishing) and earning money from them. Not much, but more than they are likely to get, if anything, from P.S. [Proposed Settlement] 1.0.

Sarnoff’s comment, like similar ones from Google spokespeople, reflects either a self-important assumption of the need for their own role as intermediaries that leaves them unable to take self-publishing seriously, or the degree to which the more forward-looking among them recognize that technology has enabled self-publishing to pose a real threat to their traditional role. An all-important goal for them is to keep both authors and readers from realizing how little they need “publishers” any more. And of course Google’s goal is to make itself the universal information intermediary, denying the possibility of any alternative or competitor.

Rather than deal with these issues, they simply deny the existence or possibility of any form of electronic self-publishing, including existing ones, other than those mediated by both Google and the original print publisher.

This is the nonsense that underlies P.S. 1.0.

Of course under P.S. 1.0 whether a work is “out of print” or “commercially available” will be determined not by legal process but by Google and the Registry under the Author-Publisher procedures, raising yet another set of issues including whether availability of content form a book on the author’s Web site will under those yet-to-be determined procedures be found to render it “in print” or constitute “commercial availability”. Sarnoff’s comments provide compelling evidence of how well-founded are authors’ fears that their existing electronic self-publishing revenue models won’t be taken seriously by the Registry or respected in its decisions on these questions.

Also from this article: “Sarnoff stressed that the settlement only dealt with books that were out of print, and not commercially available, and thus “not making a dime” for anyone.” I would like to ask who gave Google the right to declare that because something is “not making a dime” it is ok to steal it? Oh ya, I forgot it is for the public good. Douglas Fevens Halifax, Nova Scotia The University of Wisconsin, Google, & Me

Edward Hasbrouck’s discussion of electronic self publishing raises some questions about how Google Search and Google Book will treat these self published e-books for search results, in the absence of a partner program agreement, or opting into the GBS-Book Rights Registry scheme. Do electronic self publishers want their works included or excluded from Google Search results, and will Google include them in the absence of express OK, either in the context of the lawsuit or on a partner program? His observation that like musicians fed up with record companies, many authors are tired of agents, editors and publishers skimming profits off their works. David Weir has also commented on this . That’s why the 80%-20% split of revenue at SCRIBD is so attractive to so many. Well, with self publishing attacking them from the bottom, and Walmart and Amazon’s price wars hitting them from the top, traditional book publishing companies are not long for this world.

There is another, fuller account of the panel on the book fair site.

Particularly interesting, to my mind, is the report of what Sarnoff apparently claimed was the motivation behind the GBS:

The strategy … was based on the following calculation. If they lost, they would lose control, not just over Google’s scanning activities but potentially many other entities who might choose to digitally copy in-copyright books. Even if they won, it wouldn’t affect digital copies that Google had already given to libraries, many of which are state institutions and under some laws shielded from civil liability for copyright infringement, and it would impede a universally desired goal, viz to increase availability and access to the world’s store of knowledge.

“Sarnoff stressed that the settlement only dealt with books that were out of print, and not commercially available” This is simply not true. There are many books - one of mine included - listed in the GBS database as “digitized without authorization” and “commercially available”. Two other commercially available books of mine listed as “digitized without authorization” are incorrectly listed as not “commercially available”. The dishonesty of Google & its buddies knows no bounds.

The claim that the GBS is “in the public interest” gives me the creeps. Every totalitarian dictator in history has used “public interest” to justify their most draconian excesses. The arrogance, the idealistic rhetoric, the secrecy, the opacity and the isolation from reality displayed by Google’s leadership seems to me chillingly reminiscent of Chairman Mao’s Great Leap Forward.