Larry Lessig has a long essay on the settlement in the latest issue of the New Republic, For the Love of Google Culture. (Here’s a printer-friendly version, but be warned: it’s a little too printer-friendly.) It starts off on a surprising note: talking about the immense difficulty of clearing rights for documentary films. The result is that after their initial release, many documentary films end up in legal limbo: filled with brief clips whose licenses have expired, unable to be shown in any medium.

What does this have to do with Google Books?

So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it—some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation. …

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks. …

And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

He proposes redrafting copyright law, rather than ” rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture.” He has three specific proposals for reforms:

The first is to make this property system more efficient. … A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. … The government should not run these registries. … This maintenance requirement should apply to books alone—for now. …

The second obvious change is to build legal-thicket weed whackers. … For any compiled work—like a film, or a recording—more than fourteen years old (a nod to our Framers’ copyright term), the law should secure an absolute right to preserve the work without burden to the current owner. … Beyond preservation, however, the rule will have to be more complex. The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever. … It requires giving up the idea that the elements in a compiled work—the music in a film, for example—have a continuing power to block access to, or distribution of, that work. …

The third change is the most difficult … In the most abstract sense, we need to decide what kinds of access should be free. And we need to craft the law to assure that freedom. … The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either—pushed by the content industry—that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past. … Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand.

Putting his argument to one side, I’m in awe of Lessig’s skill as a rhetor. I can all but hear his voice: moral urgency in calm and measured tones.

UPDATE: Fixed the title of Lessig’s piece. That was a telling goof on my part, wasn’t it?

I’ve seen all this before. It’s the work of someone who ignores numerous important facts.

There is already a voluntary copyright registry: The US Copyright Office, and its counterparts in other countries.

Google scanned millions of works by locatable publishers and authors, many of which works are in print. Their publishers and authors are not all “delighted” by any means.

Going on about the supposedly outdated sophistry that says copyright means making copies, ignores the fact that Google is setting itself up as for-profit a publisher and bookstore of works whose copyrights it has seized.

Filmmakers have to pay for permissions, but so do publishers. A few lines can be quoted free, but not large portions of text. Copyrighted photos can’t be published without permission. Sometimes the copyright owner charges a lot for permissions, sometimes a little, sometimes nothing. Millions of books still get published, and our culture is not harmed.

I’d like to say this on the New Republic site, but apparently I have to subscribe to post a comment and I am not willing to subscribe.

Lessig notes that under the original pre-settlement Google Books scheme, “If the work was still in print, then publishers could authorize Google to make available as much of the book (beyond the snippets) as the publishers wanted.” But he fails to consider whether the publishers actually had the right to “authorize” such uses.

Similarly, he continues, “Publishers were delighted to assure this simple and cheap marketing for published works (practically all had signed up for the service before Google announced Google Book Search).” But aside from the fact that while most large publishers signed up, uptake by the larger number of small publishers (who collective publish larger total numbers of books) was less, he again fails to consider whether the reason publishers were happy to sign up was that they had nothing to lose, since they didn’t, in most cases, own the electronic rights. By stealing giving away to Google authors’ electronic rights, print publishers could promote sales of their print editions. They could care less if that would compete with or cannibalize authors’ independent efforts to monetize those authors’ electronic rights in their work.

Lessig’s fundamental error is to accept the purported alignment of the parties to the case as being “rightsholders (authors and print publishers) vs. Google”, when in fact the actual alignment of interests is “creators (writers, illustrators, etc.) vs. publishers/intermediaries (print publishers and Google)”.

As a result, he conflates authors and print publishers as “rightsholders”, consequently assuming them to have the same interests and assuming that all three terms (authors, publishers, and rightsholders) are interchangeable.

(This error is compounded by accepting the temptation to assume that “the Rightsholder” as used in the proposed settlement means the same thing as “the current holders of legal rights”, when in fact the settlement Rightsholder would be determined according to different substantive criteria and non-judicial procedures.)

For example, Lessig says that, “Under the settlement, Google would pay for the right to make up to 20 percent of copyrighted books whose author could not be found available to the public for free”. But in reality, it’s much more likely that the print publisher can’t be found (especially in the case of small publishers, and generally because they have gone out of business) than that the author can’t be found.

Even more clearly in error is his claim that, “Beyond 20 percent, the public could pay to access the full book, with the funds given over to a new non-profit charged with getting these royalties to the authors who want them.”

In fact, the proposed BRR would have no such charge to “authors”. Its duty would be to those determined under the settlement to be the Rightsholder, regardless of who currently holds the legal rights. And among those Rightsholders, even if they include some authors, the default in most cases would be for much, often all, of any money to be allocated to print publishers. There’s no guarantee that authors would receive a penny, much less that their share would be related to that to which they would currently be entitled at law.

Lessig’s puzzlement at authors’ objections derives from this same underlying confusion. He says that, “A system that channels money to authors is going to be liked much more than a system that does not.” That’s true, but the proposed settlement is a system that channels money mainly to print publishers, not authors.

Lessig goes on to reveal complete ignorance of authors’ existing efforts — the ones print publishers tried to suppress in Random House v. RosettaBooks — to get their work directly to readers in electronic forms. “Once the work passes out of print, it has become, from the author’s perspective at least, essentially free,” he claims.

That may be true for tenured, salaried academic authors, and commercially successful authors, like Lessig. More typical authors, whose books quickly go out of print in hardcopy, have much more incentive to take, and are taking, all sorts of initiatives (to their print publishers’ chagrin, when they notice) to license or self-publish their “out-of-print” books as e-books, post them on their Web sites to generate ad revenue, or sell them as PDF’s through authors’ own Web sites.

“When a used book gets sold, the author gets nothing”, he says. Not so: The referral fee I get from abebooks.com for sending a visitor there from my Web site to buy a used copy of my “out-of-print” book can be a significant fraction of what I got as a royalty on the initial sale of a new copy.

Lessig’s conflation of authors and print publishers blinds him to the conflicts between them, with the predictable result that much of his attack on authors’ “objections” is an argument with a straw man. In fact, the main objections from authors to the proposed settlement have not been to the (arguably fair use) snippet view by Google, but to the rights grab from authors by print publishers embodied in the proposed settlement’s definition of Rightsholder and in the allocation between authors and print publishers of revenue and control of the (almost unquestionably not fair use) future revenue models.

Sadly, that also blinds Lessig to the fundamental commonality of interest between authors, other creators, and readers (all of whom would both benefit from direct electronic distribution of written work from writer to reader, with its potential to provide more and cheaper access for readers and higher revenues to the authors who get only a tiny fraction of current spending on printed works) on one side, opposed on the other side by obstructive and unnecessarily costly would-be intermediaries in the form of both print and electronic publishers.

The “post a comment” button on the New Republic Web site took me to a page to order a paid subscription. Unless I missed something, it appears that only paid subscribers are allowed to have their comments published. An interesting business model and incentive to pay for a subscription, although not one I’ve encountered before on a site that is accessible and free to anyone to read.

Edward,

What I see in the Google-controlled arbitration board set up by the Settlement, is that any author who opts in, and then claims Google’s use of the author’s electronic and/or print-on-demand rights is contrary to their signed author/publisher contract, will invariably lose out to the new publisher/Google alliance set up by the Settlement and enforced by arbitration.

I have long seen the Settlement as a way for publishers to seize rights for books they have published, that were not granted to them in their contracts with their own authors. But I’d like to advance another issue. If I am reading the Settlement correctly—perhaps I am not—the Settlement also gives Google the right to sell works by one author who opts in (or perhaps even is declared opted in by nonaction), to a different publisher.

The scenario I am thinking of is: Jane Doe, author of several out-of-print books, has claimed her reversions of rights from a publisher who no longer wants those rights (perhaps the publisher has gone out of business or opted out of the Settlement). Jane has opted into the Settlement as an author. XXX Megapublisher thinks Jane’s books have profitable reprint potential. Does the Settlement enable Megapublisher, instead of approaching Jane and signing a contract with her, to buy Jane’s rights much cheaper from Google than Jane would agree to directly?

As I’m sure you know, there’s a clause in the Settlement enabling publishers who are parties to it to cut separate deals with Google, but the contents of these deals are unknown to the public. That means Google could have agreed to give such publishers “exclusives” on books opted in that those publishers want to reprint, even if they are not the original publisher. An exclusive, obviously, would make the idea of reprinting Jane’s books much more attractive to Megapublisher, than if Google were competing with Megapublisher’s editions of Jane’s books and/or allowing numerous other publishers to do so.

I also suspect that is the deal with “inserts.” Google is not going to do the editorial work to assemble anthologies; they don’t even proof the OCRs of their scans. But, the Settlement will, unless I am missing something, also enable Google to sell one of Jane’s short stories to a publisher editing an anthology, who is not Jane’s orginal publisher; and this could be done on an exclusive basis.

Does this mean Jane would get paid for ONE sale of her story, even if Megapublisher sells 5,000 copies of the book containing her story? I am unclear on how the volume payment would work in the case of an exclusive Google/publisher deal.

What I’m getting at is, people have mostly been assuming that anything in the Google “library” will be widely sold and authors will benefit from sheer quantity of sales, rather than the Settlement enabling Google to give exclusive sweet deals (at least for a certain time period) to the publishers who are parties to the Settlement. But that would be very attractive to those publishers, enabling them to widely expand their print lists as well as their e-lists at low cost.

Perhaps I have not read the Settlement as clearly as I should have; am I wrong?

Note that (according to some contracts posted online) the sweet deal Google gave the “fully participating libraries” who lent Google copyrighted books to scan, included Google contractually promising to give those libraries copies of scans of books supplied by all the OTHER “fully participating libraries.” Google gave each of those libraries a massive free acquisitions windfall of copyrighted (as well as public-domain) books. I don’t think we’re worrying enough about what the libraries will do with those scans. I believe those millions of scans are not covered by the Settlement because they are not sales under the terms of the Settlement. The authors don’t get paid for these trades, and it’s not clear what the libraries will do with the scans.

At least one of the libraries, I think University of Michigan, is selling print-on-demand books scanned as part of the Google project, on Amazon. The ones I saw were all public-domain books, so no copyright violation there. But what, exactly, do the ;ibraries plan to do with the scans of copyrighted books? The libraries may be planning to set up as publishers too, selling POD copies to patrons who don’t feel like sitting at a terminal and printing out the whole e-book. All it takes is an Espresso or Xerox Docutech.

I missed out on the NWU workshops. I am a self-publisher. I opted out of the Settlement as both publisher and author. My opt-out letter has language supplied by a lawyer that forbids Google to use scans of my books in any way, and also the libraries and “any other such parties.”

But I also want my books removed from the Google database, and from the participating library databases. My lawyer did not specify that in the letter. My books are all in print form. I have issued no electronic editions myself. If libraries display my books as e-books copiable and printable by patrons, bang goes my income to piracy.

How do I get my books removed from the Google database and all the library databases? How do I get those illegal scans deleted?

Fran

The title of the piece in the New Republic is “For the Love of Culture” not “For the Love of Google”!

Edward,

Two more comments.

I am aware that the Settlement theoretically grants non-exclusive rights to Google. But in practice, a publisher is very unlikely to want to reprint the average book if another publisher already has it in print, and holds the right to reprint it for the entire rest of the copyright term. It doesn’t matter whether that competitive publisher is Google or someone else. So, a publisher in the Settlement who got an agreement from Google that no other publisher in the Settlement would reprint the book, nor would Google, would have pretty good security that no large business would be presenting competition. The author might self-publish a reprint, but would be unlikely to withstand competition from a very large and well-known business.

Even for authors who opted in, this would be effectively a Google monopoly.

I am also aware that the Settlement only covers print-on-demand, which has a higher unit cost for over 500 or so copies than offset printing. Under normal circumstances, a publisher who believed Jane’s book would sell 5,000 copies would print offset. But, if the publisher does not have to pay Jane any advance against royalties (there’s nothing about advances in the Settlement), and does not plan to spend much money marketing the book because they invested so little, and can set what cover price they please (they can if they license Jane’s rights from Google under the Settlement, can’t they?)—well, print-on-demand costs would work out profitably no matter how many copies were printed.

Fran

Edward
“Lessig’s fundamental error is to accept the purported alignment of the parties to the case as being “rightsholders (authors and print publishers) vs. Google”,

Lessig’s assumption that the world wide network of collection society’s is at all synonymous with ; “rightsholders ” is an even greater error.

Frances, if you want to enforce your rights vis-a-vis google and/or print publishers (e..g publishers who have claimed right they don’t own), your recourse is to either (1) opt in, and hope you can prevail in what may be multiple arbitrations, or (2) opt out, send a DMCA notice, and if necessary sue for statutory damages.

The takedown “request” to Google on the settlement opt-out page is non-binding, and appears designed mostly to divert people from making a formal DMC takedown demand.

Edward,

How do I send a DMCA notice? And does this also apply to the libraries in the scanning project? Do I also send one to the libraries?

Thanks a lot,

Fran

Google itself provides contact information and their suggestions for how to send them a DMCA notice.

I’m not a lawyer, and you may want to consult a lawyer or seek other advice before sending a DMCA notice. But the possibility of using them against Google in cases of online display of complete works without permission from the actual holder of the rights to such electronic publication was discussed at both the New York and Berkeley GBS workshops for writers.

It’s not clear to me if a DMCA notice would be usable against the libraries, depending on what the libraries are doing.

I looked, and thank you.

I have reason to believe Google has scanned five of my books but the text is not online.

What I would like to do is have a lawyer send a legal letter that says something like:

Don’t scan any more of my work, or scan the same works again

Destroy the scans you have already made of my works

Do not use my work in any way, or license any other parties to use it in any way; and if you have licensed any other parties to use it that license is null and void

I reserve the full right to sue you, the libraries, and any other parties who have scanned or used my work in connection with this project

Would a form like this work?

BTW, I think the libraries, as public or educational institutions, might be vulnerable to bad publicity regarding how they lent copyrighted books to Google in return for a massive free acquisitions program of other copyrighted books.

I really appreciate what the NWU is doing for authors.

Thanks,

Fran