GBS: Brantley on the Settlement and E-Book Rights

Peter Brantley, settlement critic and very occasional blogger, has an interesting post connecting the settlement’s division of revenue between authors and publishers to the long-running war over who owns e-book rights. Here’s a taste:

It is not too much to suggest that the conflict over ebook rights and royalties is one of the most outstanding irritants in the transition to digital publishing. It is an irritant that has drawn the Authors Guild and authors, and the AAP and publishers, into conflict time and time again. These actions have repeatedly involved the same small circle of actors – Paul Aiken, the Executive Director of the Authors Guild; Michael Boni, class action attorney for the Authors Guild; and Richard Sarnoff, the Co-Chairman of Bertelsmann, Inc. (responsible for the acquisition of Random House), the Chairman of the AAP, and widely attributed as an architect and lead negotiator for the GBS settlement.

In some lights, the proposed settlement in the Google Book Search case is really a proposed settlement in the conflict between the Authors Guild and the AAP over the exploitation of digital rights. Google, a bystander to that particular conflict, managed to drop a convenient litigation container for a class action settlement that could be alleged to contain all authors and publishers in a common agreement. The eventual proposal attempts to bring wholly new benefits to the other parties in the suits; benefits that Google might not have even imagined when it first began the Google Print program.

Edward Hasbrouk and others have been arguing (I think correctly) that a main purpose of the proposed Settlement, from the publishers’ point of view, was to gain e-rights from authors that were not explicitly granted in their contracts with those authors.

I too have been wondering about the delay in Google Editions. However, having worked in Silicon Valley, and seen numerous software projects progressively pushed further beyond their originally announced, overoptimistic release dates, I feel that Google Editions may be simply another instance of same.

Google has scanned enormous numbers of works old enough to be indisputably in the public domain. Google has also apparently cut deals with a number of publishers outside the Settlement. As long as the publisher-author contracts for those newer books explicitly grant the e-rights to the publishers that allow such a deal to be cut, there can be no problem with those books either.

In other words, Google could release a large number of books without violating any copyrights, so why not just do it? Is there some advantage to also releasing all those out-of-print, e-rights-not-granted-to-anyone, and (I fear) helpless-micropublisher-too-broke-to-sue-Google works at the same time?


It would be helpful if Peter Brantly or someone else would cite the publisher/author shares of e-publishing revenues for comparison of the GBS, the Wylie deal, from Amazon/Kindle and for the i-Pad/Apple bookstore. So far we know the range is at least 63% in the GBS(less Book Rights Registry fees), and up to 80% for posting and sales on SCRIBD. Brantly’s piece is an interesting history of the negotiations over how to split the e-publishing revenue pie, but what really matters are the actual numbers and economic choices and consequences for authors and their families.

J Garchik, S F Attorney

“but what really matters are the actual numbers and economic choices and consequences for authors and their families.”

What REALLY matters is that authors retain control of copyrights they have not explicitly and voluntarily tranferred to Google or to their publisher, and not have those rights signed away against their will either by the proposed Settlement, or by any other mechanism.

I, for example, own e-rights to all my self-published books. I do not want them published in e-form, ever, by anyone. (At least, not while they are still under copyright, which copyright exceeds my lifespan.) My feeling is that sales of e-books not protected by effective DRM (which does not seem to currently exist) will be gutted by piracy within a few years, making attempts to sell them increasingly worthless. I can’t afford that—it takes me longer than that just to recoup my print costs.

Some other publishers and authors disagree with my publishing model. That is fine. As long as they have either created the work, or voluntarily sold or licensed e-rights and other rights (the Settlement also lets Google sieze print-in-demand rights), it’s legal. If they choose a business model and it turns out badly for them, they chose it and it is their affair.

It is NOT, however, anyone’s right to force their business model (of unprotected e-books, of POD books, and of forced distribution through Google, with Google taking a cut) on me, sieze whatever revenues they wish from my work, and blithely let me suffer the loss of my livelihood.

A report in Publishers Weekly states that the Wylie- Random House/Bertlesman deal is to pay authors and their agents up to 40% of e-publishing revenues, as compared with only 25% authors would otherwise get from the publisers . Maybe I am missing something, but I remember that authors used to usually get 50% on sale of subsidiary rights which is what e publishing rights were considered to be in decades past, so I dont see this Wylie deal being a victory for authors. And Wylie takes 15% off the top of such revenues as agents cut too. J Garchik, SF Attorney