It is probably too early to tell what Google is actually doing with opt-outs from the Settlement itself.
In August 2005, Google set up a database where copyright holders could “opt books out of the Library scanning project.”
Users created an account that was specifically said not to be a “Google Partner” account, and the prose said if you entered your books in this account they would not be listed in Google Book Search, as well as not being scanned for the Library project. I created an account, which is still there (I checked this afternoon). Google still has a web page somewhere saying they will not scan books opted out of Library scanning; I ran across it a couple of weeks ago. I think it’s under their public description of the Library project. I think Gillian Spraggs found it recently.
I entered all eight of my titles in a timely fashion, along with my name as author and the ISBNs. I entered three before they were even sent to the printer: No one but me (and my husband) had access to those book files or hard copies of the pages at that point. However, I later noticed that the account (which still exists) does not in fact list the dates the books were opted out, at least not to the user’s view. Google could therefore claim they scanned them before I got around to entering the data.
Danny Sullivan, the Search Engine Watch journalist, told me he could get inside information from Google, and I sent him a series of questions. (He could not believe Google would knowingly violate copyrights.) He got me very few answers. However, he told me that the books currently in Google Book Search were scanned, whether they are currently “full view” or not, but that they were not the full list of books scanned. Google has either one or two databases in addition to Google Book Search (he was confused as to the number). Five of my titles are now listed in Google Book Search (one will not come up in an author name search, only a title search), including the three entered before they went to the printer. (I only print offset books, by the way: No POD, no e-books, and no e-files transmitted to anyone except to my printer.)
In a letter to the court, probably in the objections to Settlement 1.0, the American Psychological Association complained that they sent Google a letter opting about 1,100 works out of Library scanning (instead of using the database that I used), and that Google acknowledged receipt of their letter; but as of August 2009, about 950 had been scanned anyway. The numbers I just gave are from memory.
A librarian who worked for one of the universities where works were being scanned (sorry, I don’t remember details) told me on some e-list that Google demanded such a huge supply of books so fast, that the librarians she worked with were just taking them off shelf after shelf and packing them up without making any attempt to determine copyright status.
I am not reassured by the fact that Google offered an online opt-out form for Version 1.0, yet provided no acknowledgement of online opt-out to me or to anyone else who used it (that I know of). No confirming web page to print out, no email, no postal letter. Anyone who used it will be unable to legally confirm later that they opted out of the Settlement. I also sent a letter by certified mail to Rust Settlement. I sent another opt-out letter after Version 2.0, which additionally listed my magazine articles, and cc’d it to the court, in case Rust Settlement lost their copy. Many writers, however, preferred the ease of the online opt-out.
Victoria Strauss, one of the authors of the SFWA “Writer Beware” blog, said there on January 13 that Rust Settlement was ecouraging writers who opted in, to opt out specific works by emailing Rust Settlement in a “simplified” process, rather than using the scanned books database. This was a re-post of information from the Authors Guild. See:
I have not heard whether writers who opted out works this way, have received any confirmation or have been given any means to check the status of their works.
I wanted to know whether my works were scanned before I opted out of Version 1.0. I emailed Rust Settlement to ask to see Google’s database of scanned books. At the time I assumed Google would make this public, because I thought anyone claiming compensation for a violated copyright would first want to know whether it had in fact been violated. They sent me a form email saying I could not access anything unless I opted in, and only after opting in, “for fear of false claims.” So I emailed back and said I was only interested in knowing whether my own works had been scanned, I sent a them list with full bibliographic data and ISBNs, and I said, OK, I don’t insist on seeing the database, just tell me whether any of these eight books have been scanned. I got the same form email in reply.
In their complaint filed for Settlement 2.0, the French Syndicat National l’Edition said they also asked to see the full list of scanned books, and were told Google could not supply it to them because the metadata was owned by third parties.
My conviction that Google will publish all the scanned works, even those opted out of the Settlement or opted out of “display” uses, rests on two things. (1) Google has shown no evidence that they care about copyright, and every evidence that they will do whatever they want. (2) They have been talking publicly about their “Universal Library” for years (or “Monopoly Library” in the antitrust view). I think they really believe it. I think they really want every book published now and in future, and I think they really want to give readers full access by one means or another. They are motivated partly by altruism, but they are also motivated by a desire for profit.
Because the scanning project is still going on, and I doubt anyone is checking copyright dates on the books, Google has probably by this time scanned numerous books published after January 5, 2009. What will happen with them? My guess is Google will use them and wait for another suit.
Other issues: As far as I can tell, the Settlement does not cover most illustrations in books. They are often copyrighted by someone other than the author and sometimes licensed from numerous sources. So, is Google going to publish all those scanned coffee-table and art books without illustrations? Again, I suspect they will use the illos and wait to get sued.
And finally, as I’m sure you know, Google has embarked on a magazine-scanning project. I think their declaration that “inserts” are not registered with the Copyright Office unless registered separately will likely be applied to the magazine articles—which journalists very seldom register separately.
I have worked in book and magazine publishing for 25 years, and for a variety of employers. The trade consists largely of people who create or help to create books—that includes editors, graphic arists, illustrators, and others who work on books, as well as the authors. I am not saying it is not a competitive business, or that everyone in it is ethical. But the customs and ethics of the trade are, by and large, not predatory. You just don’t steal other people’s material. You know how much it would hurt you if someone stole yours. Your professional reputation would be ruined everywhere if you plagiarized. And besides, you don’t have to steal, because you believe you can always create a better book, article, etc., yourself.
But now we have entering into the publishing business, players like Google who do not create books and who see books as just a commodity, and if they can get them cheap by violating copyrights so much the better. For anyone used to working in the traditional industry, this is really new, appalling, and hard to face up to.