GBS: The Steinbeck Letter

A little birdie sent me the text of the letter Gail Steinbeck sent announcing her decision to opt into the settlement:

Dear Andrew and my faithful Author friends,

This email is to inform you that Thomas Steinbeck on his own behalf and as the son of John Steinbeck, on behalf of John Steinbeck’s literary library, as well as Arlo Guthrie on his own behalf and on behalf of his father, Woody Guthrie and their literary and music library have chosen to opt-in to the Google Book Settlement.

First, on behalf of both families, we want to thank Andrew and his team for taking up the cause with such vigor and intellect. And secondly, I want to thank all of you, the Authors, for remaining engaged and focused upon the problems with the original settlement and for joining us as we tried to do the right thing. I think we made great strides in cleaning up some of the flaws to the original settlement and either way, we managed to bring the issue to the forefront of the debate on an international level, while creating many resolutions to some of the more glaring obstacles to a settlement.

We chose to opt-in for a number of reasons that I will discuss below. Let me start with the Guthrie family debate. Thanks to the strenuous efforts of Carl Hampe, Esq. at Baker & McKenzie and Charles Sanders, Esq., on behalf of the Songwriter’s Guild, with the help of Jan Constantine and Paul Aiken at the Author’s Guild, they were able to negotiate a major revision for musical notation excerpts in the Google database that will require Google to negotiate for these rights directly from the creators and music copyright owners that have not granted such rights. On the other hand, if the lyric writer doesn’t want their excerpted words subject to search and display, they may either opt-out or exclude the search and display of the lyrics by notifying the registry of their wishes. Most significantly, the settlement prevents Google from raising a fair use argument to avoid its duty under the settlement, which requires them to follow the lyricist’s exclusion instructions.

According to Rick Carnes, President of the Songwriters Guild, The Author’s Guild was instrumental in their negotiations and helped to carve out a settlement agreement that allowed the SGA to resolve their issues. Under these newly negotiated terms, the word “books” has been redefined to automatically exclude any work in which twenty or more percent of the pages consist of musical notations or tablature. This is a huge victory for the Songwriters and one that was clearly assisted by Arlo Guthrie stepping forward to voice his objections.

Our situation is much more complex. We have been litigating for the past seven years, and in that time, we have learned to choose our battles. Upon our discovery of Google’s infringement and the settlement talks, we decided that this was an important dispute. And though I agree with you that there are a few more issues that could be resolved in our favor, the majority of the problems that we found to be troubling have been addressed. A settlement is called a settlement for a reason, and when one happens, everyone has to give a little; otherwise, we would be battling it out in court for years to come. We have been through that and though it looks romantic on paper, there is nothing fun about litigation. It is a costly and traumatic resolution to a controversy.

The trademark issue was a huge problem for us and it has been corrected. Judge Chin agreed that the members of the class needed more time and better notice so that was a prodigious win for us. Rather than continue to swell your heads with the successes of our mission, I will continue with our reasoning behind our exercise to opt-in to the settlement.

My husband is a member of the Author’s Guild and has been for many years. In no way, do we believe that they are the enemy. After all, the staff at the Guild have nothing to gain by fighting this battle and if anything, they have lost years of their lives and have spent a small fortune to protect the rights of their members. It would have been next to impossible to independently herd a group of authors together to finance a lawsuit in objection to Google’s reprehensible acts. We are only here because The Author’s Guild led the charge, not only on behalf of their membership, but also as a spokesperson for all the creators of intellectual property worldwide. That may not have been their initial intention, but it is what ultimately happened, and when it did, Jan Constantine and Paul Aiken stepped up to the plate to try to resolve the problems, hand in glove with the Copyright office and the Department of Justice. I say, bravo to them for their efforts.

In our case, most importantly, it gave us sway over the copyrights that strangers are trying to steal from us. Our literary agents are trying to wrest away control over the works of John Steinbeck from my husband and our niece. Because the Google problem is a settlement agreement before a separate court, an agent does not have the right to make a decision on behalf of the rights owner, that reason alone carries significant weight for us. But there were other matters to consider as well. Above and beyond our personal business problems, we have always felt that a rights registry system, similar to ASCAP, is a great idea and with Google footing the bill, it will now become a reality. At this point there is more to gain than to lose by stepping up to the negotiating table to settle the issue once and for all.

We are living in the age of information. Google may have been the first to attempt a scanning operation of such breadth and in such a bold manner, but they are unlikely to be the last. It is important for us to be on the cutting edge of such business opportunities and any legislation that will protect us from the “Torrents” of the world. We will be better served by being a part of the solution than by sitting on the outside looking in. Google has agreed to negotiate with the rights holder what we consider to be a relatively reasonable fee. Sixty-three percent (63%) is more than anyone in the e-book industry has offered to date, and in this settlement, if you are positioned to negotiate a higher fee, then you have that option. If you choose to stay out, you have no recourse other than to sue.

The Steinbeck and Guthrie families will not initiate a separate lawsuit against Google. We will continue to stay vigilant over the debate, and while we continue in our belief that what Google did was an imperious act of copyright infringement, it is time to step off the battlefield and evaluate our losses and our gains. When we look at the new conditions of the revised settlement, it meets our standards of control over the intellectual properties that would otherwise remain at risk were we to stay out of the settlement. We are much more vulnerable to piracy by remaining out of the settlement, than by opting into the settlement.

All of you have been remarkable champions of this issue and we remain eternally grateful for your efforts. If you want to talk, I am happy to further explain our position, but whatever happens, I hope you will do what is best for you and your family after taking the hard earned time we gained through our efforts, to further study the debate and your options. You have until Thursday, January 28, 2010 to opt-in.

Thank you again for your support. All of you are brave and wonderful souls and I hope that we can stay in touch.

Warmest regards,

Gail Steinbeck

‘The trademark issue was a huge problem for us and it has been corrected.’ - Gail Steinbeck

Where? Article 10 still contains the clauses indemnifying all and sundry (and notably Google) against any trademark infringement past, present and future. That whole article stands almost entirely unaltered in the amended settlement agreement.

10.2(f). “Google Released Claims” means each and every Claim of every Rightsholder that has been or could have been asserted in the Action against any Google Releasee (including all Claims of copyright infringement, trademark infringement, or moral rights violation)

10.1. “Claim” means any claim (including any claim relating to any right, contract, obligation, debt, dues, sum of money, or attorneys’ fees), action, cause of action, proceeding, adjustment, execution, offset, judgment, suit, accounting, reckoning, bond, bill, trespass, damage, demand (whether written or oral), liability,controversy, expense, and loss whatsoever, whether arising in law or in equity, based on United States federal, state, territorial or common law, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, existing now or arising in the future.

It doesn’t seem as though the Steinbecks have looked into the amended settlement agreement themselves. Who, I wonder, has told them that ‘the trademark issue … has been corrected’.

She does not say that they are acting on the advice of counsel.

I realize that just as not all the people of China hacked into Google’s computers and stole their intellectual property, not all the people of the United States of America hacked into the copyrighted works and stole the intellectual property of others.

…herd a group of authors together to finance a lawsuit in objection to Google’s reprehensible acts. —Gail Steinbeck

…while we continue in our belief that what Google did was an imperious act of copyright infringement, it is time… —Gail Steinbeck

I think it is important to note that if Google is not held accountable and the GBS becomes law, then Google’s actions are America’s.

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

I don’t know what has happened to the John Steinbeck estate. But Thomas Myles Steinbeck (who is an author himself) is listed among the opt-outs (p. 65).