Clause 16 of the Proposed Final Judgment:

At any time after the date of this Final Judgment and Order of Dismissal but prior to the Effective Date, Plaintiffs and Google may, by written agreement, amend the Amended Settlement Agreement without notice to or approval of the Court, but only if such amendment is not materially inconsistent with this Order and does not impair the rights of the Amended Settlement Class under the Amended Settlement Agreement. After the Effective Date, the Registry and Google may, by written agreement, amend the Amended Settlement Agreement without notice to or approval of the Court, but only if such amendment does not impair the rights of the Amended Settlement Class under the Amended Settlement Agreement.

This passage appears capable of great mischief. The Registry and Google could agree, for example, to eliminate the Public Access Service.

Gogole’s watchword is “no commitments.” Leave everything as flexible and undefined as possible, so they can redefine it in their favor later. Every time I read one of their documents, I envision a large weasel crossing the landscape in search of prey.

Of course you’re right to worry.

James, I think you are right to worry about this provision — and worry about it a lot. If the parties can amend the agreement without notice to or approval by the court, who would determine if the amendment met the requirements of this clause? Under this clause, they could amend the agreement without telling anyone, couldn’t they? And how could anyone effectively police their behavior under the Agreement?

I have a question about this. In this case, is the court acting in equity or at law? I may be wrong, but I thought that in equity, courts often retain the power to monitor compliance with their order. (Forgive me, I’m sure I’m forgetting the correct legal terminology here.) Given how controversial this settlement is, how much power the court would be giving the parties if it approves the settlement, and how often the parties’ arguments have basically been “just trust us to do the right thing” it would seem to me that the court would want to monitor the settlement if it could.

Also, this again brings up the question of what motion/s are actually the subject of Thursday’s hearing. Have the parties said in the past that they would ask for a clause like this in the order? Have they argued for it? Has anyone had an opportunity to argue against it?

Shouldn’t the order say only as much as is necessary to approve the settlement? And not grant the parties powers that go beyond those they are granted in the settlement?

My concerns with the clause is not that major changes will happen intentionally it is that the minor changes this clause intends to allow will have unforeseen consequences. The lack of notice allows potentially huge mistakes to happen without oversight. In software when something is updated or patched the best practice is to publish a change log (or patch notes) allowing more eyeballs to view the change and identify potential problems with the intended fix. This clause should have a notice requirement that informs people when it is being used no matter how small the change appears to be.

There is also the issue of notifying the “rights holders,” not just the court. Note that the non-Settlement, Google Partner Agreement contains a click-on that requires everyone who becomes a Partner to agree that Google can change the Partner terms to anything at any time, without notifying anyone. Seems to be they may be striving for something like this here.

On a tangentt: I hate these guys. They don’t want to locate copyright holders because they claim it’s too troublesome, and they don’t want to pay copyright holders fairly because they claim it’s too expensive. Well, no one forced Google to scan 12 million books and to continue scanning them. These are exactly the same arguments I see from college-student pirates. “I’m entitled, so there.”

I’m seriously worried by this clause. Surely it should have been part of the settlement, not the judgement, so that class members could object to it and take it into account when they were deciding whether or not to opt out.

The direction marked by the ‘GBS’ sign post is a path that could have some twists. It could result in many new publications taking the path of private propriety systems; Systems where rights of control of usage cannot be easily taken and reassigned to rights of third parties. Over a long enough time the right of usage of common knowledge could = out of date information.

It could also hasten the already existing move of publishing to jurisdictions/ places like South India ( a new industry for NZ?): they speak fluent english, are tech savvy and are pretty lawful in their approach to things generally. They look like good refuges from the lawless mess that the GBS signs for. Collection societies are very good at having meetings and at collecting transaction fees , they are not really good at anything else. One more step in the decline of the west?

John,

US publishers not infrequently publish four-color books in countries where labor is cheaper, especially China. However, the place of printing has no bearing on the legal copyright.

Fran

Frances

I was thinking of ‘E-Publishing’ . Is there any need to take the product to the market, if the market can go to a server in India and purchase it directly there.

Personally, if the US and Google destroy my livelihood here, I’m looking for a country to move to, become a citizen of, and register my upcoming copyrights in. So far, Canada the UK, and Australia look like almost equally bad bets. France is on my list (I need to work on my spoken French, though), and I’m toying with the idea of India.

Somewhere in the mass of Google stuff, I saw a statement that the opponents of the Settlement had not proved it would do any harm, because Google had not begun selling those works yet. Equally, they have not proved it will do any good.

As for e-book and POD delivery to elsewhere, it’s already being done. Keeping track of accounts is a problem, though: Once they have a file, are they really paying you for the number they actually sold, or fewer?

Fran

South India Is a pretty good place. Kerala in particular is something else , very very well educated, they have been traders and rice farmers for a very long time, they love to haggle and they know the importance of keeping to the resultant deal.

Once they have a file, are they really paying you for the number they actually sold, or fewer?

I presume that this is a twist on an old problem? How do you keep an eye on publishers et all, now?

John,

With offset printing, you can check how many copies were printed versus how many were sold. The printer has a record, the publisher’s production department has receipts that can be legally demanded if necessary. E-editions are a continuous production process, therefore it is a lot harder to check.

I’ve been thinking, and … I’m familiar with Silicon Valley software companies, having been a technical writer for several (though not, thankfully, Google). Even aside from Google’s lawyers inserting clauses to make sure the publishers litigating regarding the Settlement are not actually bound by it, and clauses enabling Google to change the Settlement later without notification, and clauses releasing Google from all accountability if they violate the Settlement’s terms, and all the other vague and dubious legalese:

Ultimately, this project was designed by R & D-oriented programmers, the kind I’ve always worked with. I cannot imagine them ever finalizing anything. Their culture says that constant change is inherently necessary. Partly because it produces new and revised products for the company to profit from, but also because they assume that change is always technical and social progress. They think it’s fine if a software release is buggy because there will always, always be a new version in the future. They never stop working on any software the company is still supporting. They just issue a version that the software testers and marketers are more or less happy with, all the while changing things for the next release to take place a year or two later.

You will notice, for example, that tasks like finding rights holders and cleaning up the database are stated to be too burdensome for Google, leaving those same tasks up to the rights holders. Google engineers probably think actually organizing this project is about as much fun as cleaning the piles of broken hardware out of their cubicles; that is, no fun at all. Many R & D engineers have incredible egos: They think because they are more intelligent than average, they know what is right for the entire rest of the world, which they look down on. They often despise the lessons of history: The future is all that counts for them. They associate mostly with other people who hold the same opinions. This is where you get Google statements like the one I saw somewhere in the documents, that says opponents of the Settlement have not proved it will do any harm, so let’s just push it through and see if it does.

I think Google believes it is necessary to constantly change their strategies for using the works acquired by the Settlement. In fact, they do need to. E-books are an emerging and chaotic market. There will be new hardware, new distribution and sales arrangements, new companies.

So, all Google wants is to acquire all books—literally—cheap, with as much flexibility and unaccountability as they can get away with. And having snagged those books for the rest of the copyright terms, to constantly play with and change what they do with the books. Their attitude is Darwinian: If the creators of works can’t manage to support themselves, that means professional writers and the publishing industry are just outmoded and deserve to die. They believe Google, and any world Google creates, must be inherently better.

I don’t think anyone should voluntarily do business with Google. But, if anyone wants to structure the Settlement as an OPT-IN arrangement, it should be as a detailed and RENEWABLE contract, where the rights holders who opt in have a fixed, and clearly detailed, contract for only a year or two. And if Google wants to change the contract, this can only be done when the previous contract is scheduled for renewal. At which point the rights holder can either accept the new contract, possibly adhere to the old version if that option is available, or opt out of doing business with Google and withdraw all their works from Google’s use. They should also, of course, retain the ability to sue Google for contract violations.

Frances you are on the money, re- quite a lot of Male IT programmers, some are close to border line high IQ autisum , and the ‘virtual’ lifestyle is not all that condusive to developing emotional intelligence.

The point is ,as you imply, few sane people would freely chose to sign a contract with anybody who exhibited such a nonchalant attitude towards, honoring the terms of the deal. Hence the need for compulsory acquisition.

Hence also the doubtful long term viability of Google as a business; This is no way to run a real business; trust & emotional intelligence is everything in the real world.

Just offhand, of the people I know who work for Google as programmers, I can think of a published poet, a serial novelist, and an urban photographer. I’m sorry you’ve had such poor experiences dealing with programmers; I can assure you they’re not all like that.

James,

I am married to an artificial intellience R & D programmer. He’s an absolutely wonderful guy, and he is completely supportive of and participates in my publishing work. I also really liked most of my coworkers at places like Xerox PARC, HP Labs, and some startups. There’s a lot to be said for spending all day every day with very creative people who have IQs in the top 2%.

There’s also a lot to be said for a workplace that gives you complete freedom to design your own job and then go do it. And one that gives you as much expensive cutting-edge hardware as you want and a private office with a closed door—I got many of the same perks the programmers got.

Fact is, though, it is also a culture that fosters arrogance and social irresponsibility. I’ve worked with many equally intelligent and creative people in book publishing, but most of them lacked the arrogance. The software development culture tends very much to high pressure and long hours, therefore an inability to consider much besides work. I was on the work-till-10 PM-every-night schedule whenever everyone else was.

Silicon Valley has its own culture. There are good aspects to it and bad ones. I do not believe that because something is technically possible, it should therefore be done, without consideration of the harm it may do to society.

James,

I will add: The sympathy of programmers for writers and publishers depends not on whether the programmers are themselves amateur poets or novelists, but on whether they understand the needs of those who write as professions. Doing something as a hobby, however well, is entirely different from needing the income from it. The problem with most “information should be free” advocates is that they do not understand that those who write, compose music, etc., full time therefore need to make a living from it, because the time they spend to acquire their skills and do their work precludes their spending that same time at professions that earn more money. Likewise, substantial financial investments may be incurred and need to be recouped. I’ve spent hundreds of thousands of dollars over the past 15 years.

In other words, it’s very nice that the undoubtedly over $100K a year that Google progammers earn, enables them to write poetry or novels. But most of the rest of us writers do not have that financial luxury. Most people are not going to spend years writing at a professional level without getting paid enough to live on.

I’m also glad that you’ve had some better experiences with programmers. For a many people I know in that world, the work-until-midnight culture is an expression of humility rather than arrogance. If they had larger egos, they wouldn’t give so much to companies that give them (and the world) so little.

The ability to publish work on the Internet from a server in a country of one’s choice, transparently to the reader, creates new possibilities for copyright forum shopping. My Web site and blog, for example, are hosted and first published in Canada rather than the USA for a number of jurisdictional reasons, one of which is preserving all of my rights to statutory damages and other relief in the USA without the need for formalities of registering every update to my blog with the U.S. copyright office, or trying to figure out how to register the content of dynamically generated Web pages that could be different each time they are displayed.

Perhaps it’s a problem for a copyright law class: If a blogger/online self-publisher client were to ask for advice as to where they should have their Web site hosted and first published, what jurisdiction would you recommend, and why?

James, in describing programmers as inhabitants of some sort of virtual world, I was painting an outrageous cliche. The point I would like to make is that the behaviour exhibited matches more closely to the behaviour of collection societies than it does to real businesses.

Statutory Collection societies calculate the size of individual royalty payments, by use of lists of frequency of use of individual books/authors . These lists are mostly compiled by annual statistical sampling of actual rates of ‘copying’ of individual books,in individual libraries.

Googles ability to generate ,in real time, vast lists of names sorted by frequency of use has rattled the collection societies, if they cant tame the tiger, they are cat food. I would be very suprised if the societies have ever asked Google make The Societies obsolete.

James,

I worked until midnight in work-until-midnight companies myself, right along with the programmers. It’s not an expression of humility, nor is it a desire to “give.” If it’s in crunch periods only, it’s because the sales department promised an unrealistic release date and management insists that this date be met no matter what. If it’s chronic, it’s because management calculated how much money they can save on overhead, equipment, and benefits by working all the employees very long hours. Few people do it habitually or by choice except CEOs.

James,

I will add that (a) I find it distasteful to disguise commercial transactions with talk of “giving.” When you sell a book or other product, it’s a commercial transaction, in which money has been invested and both author and publisher expect and usually need to profit from the transaction. When you work for an employer, it is a commercial transaction: You put in the hours, and they give you the salary and benefits.

And (b) as for programmers getting “so little,” on the average, they make far more than most writers, composers, etc. I live in commuting distance from Google, and I’ve done a fair amount of work in Silicon Valley. The average local salary for a programmer outside IT (which I don’t know much about) is in fact comfortably over $100K a year—far more than most writers can ever expect to earn. It is true that housing is expensive (though coming down with the real estate crash), and other things are expensive, but still, it’s not a bad chunk of change.