The New York Times is reporting that Google and French publisher Hachette Livre have a scanning deal. The Hachette publishing family, it may be recalled, strongly objected to the proposed settlement and to the amended settlement. But now, there will be peace:

Under the agreement, which follows a landmark settlement with American publishers last year, Google will be allowed to sell the books it scans as ebooks or in other electronic formats.

But Hachette, the largest publisher in France and the No.2 trade publisher worldwide, will determine which of the books covered by the deal — those that remain under copyright but are no longer commercially available — Google has the right to scan.

Google and Hachette will share revenue from sales, as under the U.S. settlement, but declined to say how they would divide it. The deal is non-exclusive, so Hachette will be able to make the same books available for other electronic selling platforms.

So far, these terms sound very much like the ones available under the settlement itself. Perhaps the agreement differs in terms of its national scope, the settlement being confined only to the U.S. market. Hachette may also have easier-to-exercise rights to prevent specific books from being scanned, although the details are a bit thin:

The agreement differs from the proposed settlement with U.S. publishers, which has yet to receive final court approval, in that it gives Hachette greater control over which books are scanned. The companies said Google would notify Hachette on a quarterly basis of what books it planned to digitize. …

Under the U.S. settlement, publishers have to state up front whether they want to opt in or out of the deal to make their books available.

The article also says that the Bibliothèque Nationale de France “will at long last have access to works scanned by Google” and that “Hachette would turn over to the Bibliothèque Nationale, for free, books that were scanned by Google.” Whether this means the physical books or the electronic scans will be turned over, is not completely clear.

UPDATE: Here is more, in French.

The Settlement enables publishers to cut separate deals with Google on any terms they hash out together. Which both American and French publishers (or other copyright holders) and Google could have done without any preeemtive scanning and therefore without any copyright violation. Google could simply have done in the first place exactly what Amazon, Barnes and Noble, and others have done and said, “We want to set up an e-bookstore. Here are our terms for it. Do you want to opt into it under those terms? If so, please sign this contract. Then produce the best-quality e-book you can in the following format(s) and upload it to …”

The terms of the Settlement itself are, however, binding on an enormous number of individual authors whose rights have reverted to them, self-publishers, and micropresses. That is, rights owners whose books Google wants to sell but feels are too small to sue Google, therefore too small to bother negotiating with.

I have absolutely no confidence that Google will honor any opt-outs, either of the Settlement entire, or of in-print books individually opted out by copyright holders who opted into the Settlement. After all, the Settlement gives the latter no recourse—it removes their power to sue and merely refers them to an arbitration board controlled by Google. And already Google, after putting up a “Tell us which books not to scan for the Library Project” database, then went right ahead and scanned at least some of them—I’m not the only copyright holder who has found this out.

Google has shown itself willing to massively violate copyright law and mislead the public about it. (Note how the much PR’d Universal Library—which some people actually believed in!—has morphed into the Universal Bookstore.) As I mentioned in the opt-out of the Settlement that I submitted to the court as well as Google, I will not do business with a company that appears to lack all ethics.

Frances Grimble:

You, of course, are free to continue to assume ill will on the part of Google. Personally I prefer to believe that William F. Patry would prefer to resign from his job as Senior Copyright Counsel for Google rather than sully his reputation, if he knew that Google was acting in bad faith.

I instead see GBS as a scheme Patry cooked up to try to find an economic motive which would enable this “workaround” for what he personally feels are faults in current US copyright law. It might be a misguided attempt at a fix, but I rather doubt it is merely a bad faith grab for maximizing the monetary return to Google.

Another possible explanation, however, would be that he’s being manipulated by others at Google who are taking advantage of his reputation.

Of course, this relates back to the fascinating paper Professor Grimmelmann posted about the “ethical visions of copyright law” —- the discussion in the paper, and also on this forum, makes it quite clear that there are many different visions people have of copyright. My personal vision (which I think is similar to Patry’s, and the “mainstream” ethical vision in the paper) is that copyright is about creators getting paid for their work. Others who post in this forum would probably disagree, and believe that copyright is about creators having control over the use of their creations.

By the way, Professor Grimmelmann, I have a few comments on the paper (I cannot post them in the Cooks Source’s Source thread since it is closed —- I hope it is OK that I post them here).

• I would have expected a disclaimer from the author that he himself uses CC licenses.

• I think the analysis of the free software ethic is slightly off target in the following minor way: my understanding of Stallman’s position is that he is not only against a writer of software selling software without providing the source code to the customer; in fact, he believes that the writer of the software has a moral obligation to license the software under an open license, to benefit the whole of humanity. You analyze the first case as being analogous to the disrespectful practice of selling defective goods to one’s customers. The second case seems harder to fit into your model.

Hey, if the Google Hachette deal is better for authors than the GBS I or GBS II, isnt there a most favored nations clause or policy (Hello, Judge Chin are you listening) that will give the class members the same sweetheart deal Hachette is getting from Google now??

Ron, one natural place to put commentary on the paper would be the blog post devoted to it.

As for disclaimers, the fact that I use CC licenses is obvious from the CC license in the first footnote.

Ron,

The control over the work is the only thing that enables copyright holders to ensure that they get paid for it.

I believe that in England and some other countries copyright holders also have “moral rights.” In the US they don’t. But, most of them still care very much how their work is used and have strong opinions about things like, whether certain types of ads are sold in conjunction with their work.

Since you apparently do not work in publishing, you may not be aware that producing books involves considerable effort by many people in addition to the author: Including editors (often two or more doing different things), proofreaders, fact checkers, illustrators, photographers, indexers, graphic artists, and translators to and from foreign languages. Then, the publisher has considerable overhead: Rent, accounting services, legal fees, computer equipment and maintenance of same, office supplies and furniture, utility bills, and many other things.

Marketing a book is absolutely necessary. Readers seldom just find books. The publisher has to find readers (and also, bookstores and other retailers), and not only tell them the book exists but convince them it is worth buying. The publisher has to write marketing copy, send out review copies, send live salespeople and/or mailings, and generally drum up business. Social networking is proving to be an extremely time intensive and not very effective marketing method, though it sometimes works well.

Occasionally an illustrator working in tandem with an author will work on a royalty basis. But usually, everyone but the author demands payment up front (or within some common invoicing period such as 30 days). Since before I entered the industry and ever since, publishers have been using freelancers for much of their line editing, proofreading, indexing, graphic arts, and other kinds of work, so they do not have to pay for office space, supplies, or equipment for all these people. And they are now using the Internet to find freelancers in geographic areas where people charge less, sometimes inside the US and sometimes outside it.

And that’s not counting the costs of offset printers or warehousing costs—which, however, do not compose nearly as high a percentage of costs as many e-book advocates think. You also many not know that print-on-demand costs significantly more than offset printing per copy, and the current quality is too low for many illustrated books (color illustrations, especially).

This is why professionally produced books are almost always better than amateur books. I spent a fair amount of time as a rewrite editor for other publishers, and there can be a huge difference between what the author submits and what the publisher publishes. I also spent some time as a developmental editor, where I drew up outlines for authors with subject expertise and little or no writing experience, taught them how to write, and taught them how the publishing process works.

But none of these people will work for free. I hang out on micropress and self-publisher e-lists. Believe me, many of them would absolutely love to have free services, but whenever anyone asks for any substantial free work (and some do), well, it doesn’t go anywhere. There is never going to be a system where an author has numerous friends who gather round and collective provide all these services without charge. If they actually have professional expertise in these areas, they have work to do that pays them and they need the money.

Google scanned a huge number of books that were not only copyrighted but in print. (Including, apparently, mine.) I am failing to see how this was a huge social problem that Google had to massively violate US and international copyright law to solve. I can, however, readily see that Google wanted to become the dominant US publishing wholesaler and retailer in one stroke, and they felt that scanning millions of books and then threatening to sell them unless the publishers cut a deal with Google to allow such sales, was the way to take over the industry.

I will also point out that Google could easily have set up a huge bookstore without violating any copyrights. US wholesalers such as Ingram and Baker & Taylor will sell to any retailer who sets up an account with them. All Google has to do to sell in-print books (print, audio, and e-books) is to place orders with Ingram and/or B & T. Just like Amazon does. Amazon also has a program called “Advantage” where publishers too small to be accepted by Ingram can sell directly to Amazon.

As for the so-called orphan works, there is no indication that Google checked the copyright status or ownership of anything before scanning it. And, most of these books (all published after 1923 in the US) are available in libraries, and on the used book market, including large meta-book-search engines and venues like Amazon Marketplace and eBay. I am a collector of rare books in my field. I sometimes have trouble finding books published in the 19th century and earlier, but finding ones published after 1923 usually proves to be pretty quick and easy. And that’s buying them, which I usually prefer to do. But my local libraries will ILL just about anything for me for a small fee.

If someone does not want a used book enough to bother to ILL it or to run a search on the net, they probably won’t spend the time to read it anyway.

Jerome,

If any proposed Google deal is so great, they could have offered it on a strictly opt-in basis, and advertised it up the wazoo. Lots of publishers and authors would have joined voluntarily. This is exactly what Amazon has done and it has worked well for Amazon.

Ron,

If you look at Google’s actions and not their PR, they have massively and knowingly violated copyright law, in a way that (if the proposed Settlement is approved) would give them a huge financial advantage over large existing competitors of several kinds—retailers, wholesalers, and publishers. That is, Google would get all those out-of-print works (and probably plenty of in-print micropress and self-published works) free without permission of the copyright holders, whereas their competitors have stayed within the law and so do not have these.

Note that technology means that the industry is changing. Publishers are producing e-books and print-on-demand books to keep backlist books in print indefinitely. Authors and their heirs are now self-publishing out-of-print books to make them available again and make some money from them, and selling them on venues such as Amazon. Publishing may be starting to decentralize, with micropresses and self-publishers using the new technology to bypass the use of larger publishers, meaning they pay a lot more up front to produce the book but they get a larger share of the profits and have more control over the work.

Google thinks its business is information, it wants to dominate and centralize the publishing industry under its own auspices, and it wants a cut of everyone else’s revenues. Google does not understand the publishing industry or create books. They figure they don’t need to understand the industry, because they will just command it to work as they dictate from now on. They won’t need to create books because they’ll just publish and sell other people’s, without permission in the hundreds of thousands, or millions, of cases where they choose to do so.

Google is, in short, merely a robber baron. Their arrogance is breathtaking.

I’ve met a few people whose publishing activities consist of publishing very small editions of books on old printing presses they set up in their basement—the kind of press where you have to hand set the type. Then they hand bind the books. It is absolutely their prerogative to work that way. It is not Google’s legal or moral right to march in and tell them they should publish e-books instead and distribute them on the Internet, because horrible damage is being done to the public if they don’t.

Since I know Ron is going to pick holes in one of my statements: Google can ADVISE publishers to produce e-books all they want. But is not legal or ethical for Google to produce and sell them (or give them away) without the copyright holder’s permission, to meet the Google vision of how publishing should work. And also, of course, for Google to make enormous profits—hardly a coincidence.

I personally would not produce e-books because it would encourage my readers to pirate even more than they already do. Also, they only want e-versions free. As soon as they have to pay anything at all they not only want a print book, they are extremely particular about its quality. I don’t expect Google to understand how my business works, but they should obey the law and let me produce books in the manner I need to.

Here’s an idea: why not reserve this thread about the Hachette deal for discussion of the Hachette deal?

I’ve created an open thread for general debates on the Google Books project, the Authors Guild lawsuit, the proposed settlement, the future of books, and so on.

James,

Sorry & thanks.

It is very difficult to analyze the Hachette deal because almost nothing is said about its precise terms. Here is an interesting related article:

Fran

The Open Book Alliance: Is Google Turning the Page?

The other day I wondered about book rights registries. In the new deal with Google, Hachette acts as a kind of book registry. It seems to me that if Google went into their book digitization project with the goal of building a digital library to hold all of the worlds books, it should have put that library on a sound [copyright] foundation.

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

As a owner of a printing company felt I needed to clarify something that was said above about costs per page. While I am not a fan of on demand publishing there are niches where the cost per page can be lower than offset printing. Both have their place in publishing. On Demand is on the very low end of quantity spectrum. If you are doing 5-100 books trying to get started or self published your cost per page would very likely be less than doing it offset. If you are talking about mid to large quantities offset is going to be less. They both have their place in publishing. One is a apple and one is an orange. Not trying to disagree just thought it needed to be clarified for those maybe not knowing the business of printing.

The Guardian is reporting:

“The deal only applies to Hachette Livre’s French language publishing, but Google has also said it is in “notional” talks with UK publishers about a similar deal. The chief executive of Hachette UK, Tim Hely Hutchinson, declined to comment on whether his publishing house would be following its parent company’s lead.”

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

Buzz,

You are of course correct. If the publisher’s desire is to print a maxiumum of 500 copies (often fewer) at a time, POD costs less per page than offset. But for a book intended for commercial sale and profits, it is necessary to sell more than 500 books (unless the list price is really high). I have a micropress with 9 titles, and even I print several thousand copies per run. My hope is that POD costs eventually come down to the point where publishers can always print economically that way.

Fran

I can read French, but oddly enough, few articles on publishing-related French. I won’t translate the French article entire (it contains a little backstory and fluff). Here is a summary:

The works to be digitized are out of print. They account for approximately 70% of the previously published books of Hachette Livre and its imprints, approximately 40,000 to 50,000 works. These are primarily general literature, references (especially those of Larousse), and academic books. It is not an exclusive contract and it respects authors’ copyrights.

The Hachette PR agent who provided this information asserted that other publishers might wish to adopt similar contracts. The author of the article, however, had not been able to reach other publishers for comment. The contract must be finalized (carried out?) within six months.

The Minister of Culture Frederic Mitterand pointed out that he believes it is necessary for the agreement to respect the following principles, which form its foundation: Hachette determines which books are out of print, and Hachette controls which books will be digitized and whether each will be reissued as an e-book or in some other edition, such as a POD book.

Google will provide the initial files. Hachette will then produce the edition they desire and make the books available to booksellers. Hachette will also have the power to authorize distribution by various channels, including Google Editions, which will be launched “very soon.” Hachette reserves the right to profit from selling the digitized books to institutions, such as the National Library of France.

Hachette is not releasing Google from liability for its past actions, and both parties retain the right to sue each other. Hachette USA has also signed a contract with Google.

My question: What exactly is Google getting out of the deal?

Google seems escatic about this deal— see reports of yesterday’s comments by Dan Clancy and Drummond reported at www.bookpublishersblog.com

All I saw at that bookpublishers blog are unrelated posts dating from 2009. Can you check the URL?

Here is a very short announcement:

http://www2.wnct.com/news/2010/nov/17/google-negotiating-book-scanning-deal-france-ar-545089/

Of interest: “Details of the agreement will be negotiated over the next six months.” That, apparently, is what the article I translated meant by “finalized.” This is like the excited and oft-repeated Google PR that the proposed but unapproved US Settlement has “reached” a groundbreaking deal between Google and publishers: The deal has not, actually, been reached. Though my guess is that if Google and Hachette can agree on the financial terms, this will be, effectively, a buyoff agreement as an alternative to a suit.

Of course, small publishers, and authors, such as myself whose works have been scanned but who cannot afford to sue Google, have no power whatever to cut any deal with Google, no matter where they live.

I believe the story Jerry was thinking of is here

French authors’ body warns over Google-Hachette deal

The guardian.co.uk

Douglas,

Thanks. I was expecting to see something like that, because Hachette Livre does not necessarily have the contractual rights from their authors, to allow Google to scan all those books.

Fran

More from the Guardian: French publishing giants cave in to Google’s great copyright heist

James

Exactly what is Google purchasing from ‘libraries’? Is it ‘copyright’ ? Are the scans some sort of brand-new copy and subject to copyright in themselves? Can you greenfield the copyright of books that are out of copyright?

.. it is inconceivable that, having made this investment and undertaken this extraordinary programme (for that’s what it is), Google will not ultimately seek to extract some commercial advantage.

But (in a read/write world) how?

John Walker: Exactly what is Google purchasing from ‘libraries’? Is it ‘copyright’ ? Are the scans some sort of brand-new copy and subject to copyright in themselves? Can you greenfield the copyright of books that are out of copyright

Google is borrowing physical books from libraries. It is not obtaining copyrights, which in any event the libraries don’t own.

The individual scans are probably not subject to any separate or new copyright other than the copyright (if any) in the books themselves. This is not completely certain, but there is caselaw that exact photographic reproductions of existing works two-dimensional works do not give rise to a fresh copyright. Google may have a copyright in its overall database, but that copyright doesn’t give it any copyright control over individual scanned images.

For questions like this, it may be helpful to consult an article with an overview of the settlement, such as Matthew Sag’s, Jonathan Band’s, or mine.

Thanks.

Like many curious onlookers, I am wondering what it is, that Google plans to sell, that would make the project economically sensible.

There is a cash-flow issue for many businesses at the moment. (A Banker acquaintance told me that because so much of the money that was withdrawn in the panic has not to date resurfaced, there must be trillions in cash literally under beds.)

Europe is doing hard times . Hachette Livre might have needed the cash. It is normal in depressions for the cashed up to pick up bargains. Wonder about the long term value of a storeroom of mostly out of print titles- many of these titles are likely to also turn up on the French National digital project, no?

As France was excluded from the GBS-ASA, and the Hachette Livre deal does not resolve their GBS dispute with Google, I would imagine during the next six months Hachette will be looking for Google to make amends for their past copyright infringements, after all, this agreement would be meaningless if Google was to continue to use their digital copies of Hachette volumes already scanned by Google.

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

The Open Book Alliance says “Google has scanned more than 100,000 French works that are still protected by copyright.”

Douglas,

The Hachette-Livre deal is not finalized—six months has been allowed in the contract to finish negotiating its terms. My guess is Hachette Livre may have retained the right to sue Google until the negotiations are finished, but that the final contract will include a commitment to drop the suit.

Fran

Like the rest of us, no doubt Hachette Livre is awaiting a ruling from Judge Chin before making any final arrangements or concessions on the Google Book Scanning project…Will this happen in the next six months? Only the GBS Shadow knows.

If only George Sanders was still in the room ; he would have at least done ‘waiting for absurdity’ with style.

James In ‘copyright’ lately there have been some interesting attempts - a local chocolate manufacture tried to claim ownership of the color purple- there have been claims of ownership of things like train timetables and so on.

Google dos not own the property but possibly; could it end up owning the path to the gate?

Jerome,

Even though French-copyrighted works were excluded from the Settlement?

Fran