GBS: Richard Epstein Weighs In

Uber-distinguished legal scholar Richard Epstein has written an op-ed for the Financial Times, Google-itis: Beware of Class Action Settlements. He comes out largely against the settlement but with plenty of idiosyncratic twists. There is something in here to delight and to infuriate almost every observer. A few interesting bits:

In mid-December the Google Books Project suffered another blow when a Paris Court rejected the fair use defence to a suit of copyright infringement. The publishing group, La Martinière, brought suit against Google’s practice of making a single copy of a published work for use in its advertisement. … Google’s rationale is catchy, but the French courts were right on the money. …

If I had to pick a single word to describe Google Book Search, “advertisement” would not be it. The virtues of searchability go far beyond merely convincing people to buy things.

The French makes good sense because a successful market transaction can supply something that a fair use doctrine negates: financial compensation for authors whose works are included in the Google Books Project.

This way of putting things presumes that authors are entitled to compensation for inclusion in the search index. I assume that Epstein believes they are; I’d like to hear his rationale.

The initial barrage of criticisms rested chiefly on antitrust grounds that my Chicago colleague Randy Picker carefully analysed both here and here. It seems fair to say these concerns are largely mitigated in the Amended Settlement.

Antitrust being among the polymathic Epstein’s many specialties, this is a significant comment.

The clean victory of the publishers in France seem to preclude the possibility of a Gargantuan settlement there.

That takes the prize for best use of a capital letter I have seen this year.

Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity.

Read literally, this sentence implies that either Richard Epstein is immortal or he’s been defeated by the settlement. Both of these strike me as unlikely.

The root difficulty lies in the simple fact this proposed settlement goes far beyond the contours of the original complaint. When the Authors Guild sued Google, its members were united. Authors and publishers, who squabble over all sorts of things, both wanted to stop the future infringements and to get damages for the past ones, which they could divvy up in accordance with their individual contracts. … Unfortunately, terms of Google settlement create unnecessary conflicts of interest between authors and publishers that cannot be easily papered over.

This is a notable move; it ties the future claims issues to the conflict between authors and publishers.

One troublesome feature is the formation of the Google Registry run by the Authors Guild whose term insulate Google from the direct claims of authors, even for an accounting of individual royalties, while allowing Google very broad access to aggregated data with immense value for nondisplay uses. In addition, no author can easily figure out the consequences of opting out.

I believe that some of the regular commenters on this blog are likely to agree with Epstein on these points.

Here is one caveat. It might make sense to allow Google to presume provisional consent for “orphan” works, narrowly defined, say, to cover books published 60 or more years ago, which are now out print, with standard royalties paid into a fund. The fear here is that works will remain dormant because no one is around to press the right radio button. Allowing immediate use with a reverse default has a good shot at passing the fair use test because the transactions costs for reaching these unknown authors are sufficiently high to allow for a market bypass.

Query: would this be in the class-action mechanism (and thus working only in Google’s favor), or would this be a general privilege that anyone could take advantage of?

‘In addition, no author can easily figure out the consequences of opting out.’

No author can easily figure out the consequences of opting in.

One consequence of opting out should surely be that one’s rights remain protected under law.

If this turns out, in practice, not to be so, then there is no protection for them to be had - there is certainly very little under the settlement agreement.

And if that is truly the case, then the US legal system, US culture and US citizens will be the biggest losers.

I am a visual artist, reproductions of paintings of mine that I hold copyright on are in a number of Books, some of which are on Google. What is the situation for authors of ‘non-Text’content? DO I need to consider opt out / opt in

John - I am not a lawyer, and I defer to those who are.

However: if the reproductions have been licensed from you on a non-exclusive basis for a one-off permission fee, (or with fee waived), and you are not the author or co-author of any of the books they appear in, then it seems that they do not come within the scope of the settlement agreement:

1.75 The term “Insert” does not include (1) pictorial works, such as photographs, illustrations, maps, paintings…

If you are the author or co-author of the main text of any of these books, then the reproduction is apparently included in the settlement agreement as part of the book, and you do need to consider your options. The National Writers Union has a FAQ page on the settlement you are likely to find useful. (Full disclosure: I am not a member of NWU, being a British author, but I think highly of their work on the GBS.)

If you aren’t the author of the text, but have a contract for payment on a royalty basis for the use of the images, then - the Authors Guild lawyers have reportedly told an enquirer that you are an author within the terms of the settlement agreement.

But - for a work in a book not to be an insert, there has to be someone who has a ‘copyright interest’ in that work and also in the book’s ‘Principal Work’ (1.75 again).

1.41 “Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Amended Settlement Agreement.

The authorized uses are defined in 1.1, 1.7, 1.52, 1.94, 1.108, 1.147; further set out in 2.1(a); and elaborated in 3.

Illustrations are not ruled out, and are in fact mentioned once: buried in 3.10(c)(ii)(1).

But then again, under 1.113 ‘“Principal Work” means a Book’s principal written work’. So that suggests that to be an author under the settlement you would have to have written some of the book’s main text.

Which would mean the Authors Guild lawyer, if correctly reported, has misunderstood the settlement.

Confused? I am. Can anyone else shed light?

If your rights are valuable, you would do well to consult a lawyer.


He is not “largely” against the GBS, he is completely against it and says Judge Chin should reject it altogether, and leave the business of e book publishing solely at the mercy of free market forces. Well, I get the impression Prof. Epstein is a Milton Friedman acolyte, connected to U of Chicago and the Hoover Institute, and his is the Ayn Rand position on the GBS. Duh, does this mean the Ayn Rand copyrights have opted out? Are they in a partner program? What about Prof.Epstein’s own books and inserts. Is he opting out or filing objections? As an author himself, the GBS is not merely an academic issue for him and he should share his own personal decision with the rest of us confused mortals.

Prof. Epstein is already on record as an objector. Like all other authors, he had to opt in if he wanted to object.

Prof. Epstein (along with his U. of C. law school colleague Prof. Geoffrey Stone) was among the authors represented by Michael Guzman (Kellogg, Huber, Hansen, Todd, Evans & Figel) and Lynn Chu on the brief in objection joined by the NWU and ASJA. The individual objectors are profiled in Appendix A (pp. 36-50 of the PDF) of the brief.

John, again: I have a post on my journal that covers the question of illustrations and photographs as far as I currently understand it. I have just updated it a bit.

Offered with no guarantees…

To quote the letter sent yesterday to more than 60 Congressional authors by National Writers Union, the American Society of Journalists and Authors and the Science Fiction Writers of America:

The ramifications of the amended settlement for any one author and any one book are exceptionally complex. … There are millions of book authors in this country who could be locked into an agreement they don’t understand…

Gillian thank you, I am also not a lawyer (but my father was a Barrister- did a lot of contract work). The details as to ,the who and what of this, are very confusing - so much so as to surely call into Question the validity of the settlement as a ‘contract’. How could anybody know what it is they are agreeing to? Even for a lawyer there is not a lot of case-law to guide an judgement on the obvious confusions and contradictions of the settlement contract. I will (to be on the safe side) send a letter opting out; “Never sign/agree to anything you cant clearly understand”

Another question , What about authors that are not yet ‘born’ ? Is this actually a once only, for all eternity, chance?

John: As you rightly say, ‘How could anybody know what it is they are agreeing to?’

And under the ‘default opt-in’ arrangements, large numbers of authors are to be bound by a legal contraption they are not even aware of. Many British authors have still never heard of the Google Book Settlement.

I am very interested in your point that the confusing nature of the settlement agreement calls in question its validity.

The settlement agreement only affects books published on or before 5 January 2009. Authors unborn are unaffected.

As for ‘chance’: that implies the settlement is a good deal for authors, which on the whole it isn’t. It might make modest sums for a few elderly authors with long backlists of out-of-print, reverted books. Curiously enough, most of the representative plaintiffs seem to fall into that category (and none of them can be said to be in mid-career).

In the event that Google Books takes off as a business, and doesn’t become another of Google’s failed enterprises, I expect there may, in time, be opportunities for opted-out authors to sign up with Google on more sensible terms - if they wish. Google is already cooking up ‘Google Editions’.

Then there is the existing Partner Program: Google has made it clear that it positively welcomes opted-out authors into the Partner Program. For those inclined to take this up, I recommend reading the fine print very carefully and thinking hard, but at least the terms of service are fairly short and fairly clear. I have talked to someone who has tried it, though, and he hasn’t been impressed, either by the advertising revenues or the evidence (none) of increased sales.

I myself will continue to follow a principle that, for me, sits next to ‘Never sign/agree to anything you can’t clearly understand’, which is ‘Never enter into a business arrangement with anyone whose behaviour you find troubling’.

Re”the confusing nature of the settlement agreement calls in question its validity.” What are the provisions of consumer law about fair contracts in America? Also, could the settlement involve signing away common law rights i.e. be not valid under common law ?

“‘Never enter into a business arrangement with anyone whose behaviour you find troubling’. “— too right! These collection societies tend to be big on moral panic and often deeply in moral hazard: short on honesty, exhibiting a strong preference for keeping adverse information in-house.

The background to the settlement seems to fit into a pattern of behaviour of collection societys: Small groups of ” elderly authors with long backlists”(and managements that self-describe as authors) lobby that in order to protect culture from ‘commercial exploitation’ they should be granted a monopoly over the representation of ALL authors/artists (and be granted a compulsory right to management fees)

We have just seen this tried on in Australia. A resale royalty on artworks that under the skin was a monopoly management & representation right for the group that promoted it, they did not get what they wanted.

Are you in Australia? We are not hearing the views of Australian authors at all.

New Zealand saw the settlement off; Canadian authors are protesting vigorously; in the UK disquiet is growing; a determined opposition is being mounted in the States. Only Australians are silent, as though they haven’t taken in what is happening.

Almost nobody here knows about it affecting Australia, the Government has not said a word that I know of. It has been in the press but.. its an ‘american’ story. And it is the summer season for the beach and cricket.

My partner who has just completed a PHD at the Australian National University and is a published author has not recieved any info from the uni. Monash University in victoria has circulated some info . A friend who has had a long life in publishing and is successful author & editor had not heard about it.

We only stumbled apon it because of our ‘obsession’, with the copyright society VI$COPY and its very bad version of the artist resale royalty which has made us take a interest in copyright societies as a phenomena ; how they think. A cross-breding between Uriah Heep and Fyodor Dostoevsky would be needed to portray their mindset.

The biggest authors copyright collection agency in Australia CAL is very belatedly,this month and only days before the deadline, conducting workshops, but has not done anything much about broadcasting the information. It claims to be neutral on this issue,.. But collection societies tend to support each other when it comes to expanded management rights & payments. ‘Orphan’(Undistributable) rights are very keenly sought after by collection societies; Because they cant be delivered, they can be redistributed to the costs of management , lobbying and towards providing special ‘life time achievement’ awards and other services for their members.

In your summary on your site you say “The moral rights of authors who are opted in to the settlement are waived.” I thought moral rights were inalienable; cannot be signed away, a bit like common law rights. No?? By the way Thank you , you have obviously spent a lot of time and effort on your summary, “I dips me lid”.

One last thing. About this ‘default’ of opt-in. Many artists/authors are solitaries ,not inclined to “join anything that would have me as a member”. They are exactly the authors who , are the most likely to want to opt-out AND the least likely to have heard anything about it all. There will be lots of issues for years to come.

John -

If you are the person I guess you to be, you are down on Amazon as the co-author of several books on your work. Opting out would be a prudent course.

On collecting societies: I posted a comment here in November on the role of the UK’s Authors’ Licensing and Collecting Society (ALCS) in promoting this scheme in the UK. The ALCS has not concealed its ambition to collect and process payments on behalf of UK authors.

I would speculate that the CAL may be thinking along similar lines.

On ‘moral rights’: these are codified in the Berne Convention (Article 6bis); in France and Germany they are inalienable; in the UK they are clearly set out in statute law, which states, however, that they can be waived (and publishers’ contracts frequently contain a clause by which authors waive the ‘right of integrity’, ie, no excerpting without permission); there is an article here on moral rights in the US, which states they can be waived: but this must be done in writing.

Oho! is this another hole in the GBS agreement? ‘Opt in by default’ is a very long way from being a waiver in writing.

‘There will be lots of issues for years to come.’ I agree.

However, I believe that the only way they can make this stick in the UK, Canada and Australia is if the authors in those countries tamely acquiesce.

The Berne Convention will not do the job they want it to of roping in non-US authors; this is set out in the opening sections of the objection by the New Zealand Society of Authors; see also the objection by Harrassowitz et al, pp. 24–25.

Furthermore, it strikes me that even within its own terms, the settlement agreement does not (cannot) protect Google from being sued in the commonwealth countries: see Article 10.1(a).

I am sending an opt-out letter as is my wife. Your posting about the British Author collection society mirrors the local scene well. Virtually All collection societies have been moving to secondary statutory licences; they are very profitable and difficult for either the state or right-holders to regulate . They all try very hard to achieve both monopoly status and a power over individual right-holders of compulsory usage- in order To ‘protect’ right-holders . In short they seek to make the payment of the collection fee(by the artist) a ‘duty’; a Hypothecated tax to the costs of the management of the scheme. Hypothecated taxes are in Australia very unpopular and thus their ambition for the artist resale royalty to set a radical precedent, failed.(no copyright in Australia is compulsory)

Re the Australian Society of Authors, I am an artist ,I have knowledge of either it or its chair.

However to my experience there is generaly a lot of fudging as to who/what spoke-persons actually represent at ANYONE moment. And little examination as to whether they represent any thing substantial at all.

In Australia its common for the elements of the ‘field of autonomous cultural production’: (‘representative’ organisations, other sorts of arts groups , cultural foundations , collection societies….). To share so much; directors, members, positions on peer-review bodies.. ect That they are blind to even the possibilty of conflict of interest .

Who/what granted the people at the table the official status needed to represent their nation in a major economic matter? What are their credentials?

I have summarized the history and background of the settlement, up until September. I keep hoping to get time to update it. Since the opt out deadline on 4 September, the settlement has been withdrawn and amended: outside the US it is now restricted to books published in the UK, Canada and Australia. European publishers and governments raised a storm, with the support of authors; New Zealand Society of Authors protested strongly and eventually prodded their government to agree to discuss their concerns; in India the government made diplomatic representations to the US; in China, Japan, authors protested.

When the dust cleared, the three non-US countries left in the settlement were the ones where

  • the authors’ societies were showing little or no resistance
  • token ‘representative plaintiffs’ came forward
  • a majority of the big publishers supported the settlement, being arms of the same conglomerates that have brokered and promoted it in the States
  • the governments were silent (having presumably been lulled into complacency by lobbyists from the authors’ societies and the publishers)
  • most of the authors either didn’t know about the settlement or had swallowed the marketing pitch

I have a post on my journal on the ‘representative plaintiffs’.

The ‘representative’ author from Oz is Robert Pullan, Chair of the Australian Society of Authors. I cannot find that any of his handful of books is currently in print. His most recent book publication appears to have come out in 1994.

There will be a place for ‘at least one’ Australian author representative on the Board of Directors of the planned Book Rights Registry.

The ‘representative publishers’ are Melbourne University Publishing and The Text Publishing Company.

The Book Rights Registry is, of course, a wholly unnecessary entity.

“The Book Rights Registry is, of course, a wholly unnecessary entity.” — In Both the UK and Australia there are a lot of ‘phantom entities’ in the autonomous cultural field. Creating more phantom entities is what phantom entities do for a living. Tiss nothing but a hall of mirrors , as frozen as Narcissus and as hard to see as Echo, ……Signifying , bugger-all , No?

Will try to raise the following:

This settlement has been negotiated by people who are either:

  • US Publishers aiming to get money for electronic rights that did not exist when the books in question were published .


  • Elderly writers, somewhat out of their depth .


  • Collection managements that will get transaction fees no matter what :- a position of moral hazard .

Atempting to cut a Deal With….

  • … GOOGLE -definitely no pussycat . Fool around and- “it might hurt”.

If the system being created fails to deliver. Google is indemnified from liability. There would only be a husk.

In effect the opt-out rather than opt-in nature of the treaty makes this settlement a de-facto international economic treaty, binding on our sovereign nation(s).

Why isnt Australia’s (Or the UK’s) Department of Foreign Affairs and Trade/Diplomatic service present at the table? Why is this ‘treaty negotiation’ being left to these people?

From The ASA website: “The ASA was instrumental in setting up the Copyright Agency Limited [CAL], which pays creators whose work is copied under statutory licence. This work has resulted in payments totalling nearly $100 million in 2005 being available for creators.”

As I said they ASA & CAL have been very relaxed about publicising GBS, no worries mate.

ASA seems to be a genuine member funded representative body. I cant find a detailed fin statement in the annual report, so have to go off the written treasurer summation.
However: Its not all that big, about 2.7 thou members and its office holders have a ‘familiar faces’ quality, they wear different hats during a typical week. CAL and ASA are in human terms closely intertwined.

Could the Australian society of authors just possibly confuse Authors interests with the interests of Copyright management? I think the answer is yes.

CAL went on to initiate (and fund) the setting up of Viscopy which then spent 15 years trying to make artist use of its ‘services’ a duty mandated by the crown; compulsory. The faces of the Copyright world are familiar to us by now because they spent a lot of time and money supporting Viscopys ambitions for a compulsory management right for itself. Viscopy has a twined lobbyist arm -The National Association of the Visual Arts , NAVA. It claims to be the sole representative voice for ALL artists in Australia. Only %12 of NAVA income comes from member payments ,it really is a phantom. In 07-08 NAVA made a extraordinary blunder , it failed to deliver on its part in a matter very dear to both the responsible Minister and most of the parliment to boot, because quote “we are too busy with the resale royalty” to complete that paper work. It says it it all, no?

About why all I think this ‘rights’ stuff is worth wasting time on. Questions of economic rights, pertaining to groups ,are questions of power. Too much power concentrated in too few hands corrupts —it corrodes, it rusts. And (while I am on the pulpit) nearly all greatmen have been very bad men.

Emerson visited Britain in about 1850 at the peak of it’s almost complete monopoly over world trade. He wrote of a sense that too much power was already silently corroding the edifice; that decline and fall was not that far away. He thought that Britain was already dominated by a kind of managerial “submind” one that exercised all skills at “a secondary level” He felt that it was Like walking in a great hall :” standing on a marble floor where nothing can grow”

I feel that much the same could be said right now about much of the English speaking peoples world and that’s not good.

Google Book, advanced search for Ralph Waldo Emerson,author, shows 5230 entries for his books and inserts. I am not an Emerson scholar, but I doubt he would describe the Internet as having “a marble floor where nothing can grow.”

I was not describing the internet. The internet is not controlled, I like it. It generates a lot of shocks for things that used to be natural monopolies.

The Quotes came via V S Naipaul, they were used to end an essay about a new kind of political language that was being born around the time of Ronald Reagun’s second term. This new language was/is very much the opposite to open source creative commons languages like English. It was/is controlled - no recursive calls ,no irony and no surprises like, novel reuses of ideas formulated years ago. The essay is in the collected essays “the writer and the world” its worth a read.

The idea that there are ‘original’-‘own-able’ ideas is useful convenient necessary and - bull : ideas are not objects ,they are movement- ‘meta’. You cant own change.

John -

‘US Publishers aiming to get money for electronic rights that did not exist when the books in question were published.’

Yes. But as it appears, there is another issue as well. This is a quotation from the open letter recently sent to members of the US Congress who are published authors by three US authors’ organisations who are protesting against the settlement; National Writers Union, American Society of Journalists and Authors, and Science Fiction and Fantasy Writers of America:

Have you wondered why the settlement only covers out of print books? It’s because the major publishers have struck side deals with Google for their in-print books. In other words, the publishers who are negotiating for the plaintiff class have brokered a deal that will determine the digital future for books — but they want no part of it for the books that they actually are trying to sell!

The publishers’ side was challenged in November to deny the existence of this side deal and has not done so. It is provided for in the settlement agreement under 17.9.

‘Elderly writers’ - that is a reasonable description of most of the representative plaintiffs. I think Robert Pullan is probably the youngest, and he was born in 1944.

Under the settlement agreement, within ten business days after the date the settlement receives approval Google will pay $30 million to the lawyers for the Authors Guild (5.5). It is fair to say that this has provoked some comment.

Everyone else has to wait for payment - assuming they do get paid: there is no guarantee that anyone whose books were/are digitized after 5 May 2009 will ever receive anything at all.

‘If the system being created fails to deliver. Google is indemnified from liability. There would only be a husk.’ - Absolutely.

The agreement has been drafted throughout in a way that apparently indemnifies Google against being found liable for very much.

‘In effect the opt-out rather than opt-in nature of the treaty makes this settlement a de-facto international economic treaty, binding on our sovereign nation(s).’

You are, of course, speaking ironically.

One of the quite fascinating aspects of this affair is the way the class action device is employed to disconnect the whole arrangement from any of the usual legal safeguards.

  • If it were a contract, there would presumably, as you have said, be protections under common law.

  • If it were a charter to set up a collecting society, there would be fiduciary duties owed by the directors; also provisions for regular auditing.

  • If it were an international treaty it would surely have to conform to the obligations imposed by the Berne Convention, the TRIPS Agreement and the WIPO Copyright Treaty; also the Universal Declaration of Human Rights (see Article 27.2); the UK would also have to take into account the Charter of Fundamental Rights of the European Union (see Article 17.2). There are probably more.

It seems to be the hope of Google and the plaintiffs that class action law is sufficiently malleable that they can do pretty much what they want with it, without any tiresome restrictions.

Scott E. Gant, US class action lawyer and author, says they can’t. He says that class action law is governed by quite specific rules and that the GBS agreement breaches them at important points. Somehow, this doesn’t surprise me.

I note that one of the things the GBS agreement doesn’t do is make Google secure from legal action brought in the commonwealth countries by authors who are opted in. As how can it? The court has no jurisdiction.

‘Rights’ - for writers, unlike painters, rights, and licences to rights, are all we have to sell.

“‘Rights’ - for writers, unlike painters, rights, and licences to rights, are all we have to sell.” I take your point , I do know that for many good people this is not a game .

Surely the name for this tale is Uriah.

“speaking ironically” who me? … Art is a lie that tells the truth.

A sort ofchimera of conflated opposites such as taxes and royalty’s , misrepresentations of misrepresentations represented by further misrepresentations, is currently popular in copyright. Especially where ‘culture’ meets money. Something to do with ‘culture’ being a bit of an traveling illusion-medicine show, perhaps ?

Copyright royalty rights : a full “individual right of control of usage” to give its full title, is increasingly being turned into a matter for groups (and thus power) to fight over .

The details about the publishing houses private deal, makes the payment to the ‘elderly’ collection society(s) look even more like a cross between - pension, lifetime recognition-‘prestige award’(You’d know the old usage of prestige- con—trick) And ……

A payment for services.