The gut says the Google Books class-action settlement – negotiated by the Association of American Publishers in conjunction with the Authors Guild – is doomed. Too many moving parts, running too much roughshod over existing law.
But I don’t come to this conclusion from the perspective of a Central Casting new-tech basher. Something very important for the future of authors is going on here, and Google obviously will be a big part of that. It’s just that a preemptive sellout settlement by an organization speciously claiming to represent the interests of the global community of writers cannot be allowed to define that something.
For similar reasons, I try to mute my criticisms of Amazon, the great hegemon that just might do some good for the diversity and vitality of our stagnant book culture. “Mid-list” authors like me are supposed to decry the demise of independent bookstores. But I haven’t observed too many indies giving us the time of day, any more than Barnes & Noble or Borders. At least Amazon has a universe of infinite shelf space, a nascent “author page” system (yet another nail in the coffin of publisher middle men), and a Kindle e-book reader, which, according to reviewers, masters the first round of challenges in developing the literary counterpart to the iPod. With Amazon, my concern is just to make sure it doesn’t acquire the absolute power that would corrupt it absolutely.
Back to Google Books. The settlement, announced last October and facing review this summer in federal court, got some of the things rights that an earlier Authors Guild-engineered industry settlement, for freelance newspaper and magazine journalists, got wrong. (I lead a slate of objectors to the 2005 settlement in the “Freelance” case, which is now at the Supreme Court and called Reed Elsevier v. Muchnick.) For example, there’s real money behind the Google deal, $125 million worth, and there’s a prospective royalty system rather than a naked giveaway by the so- called class representatives.
Unfortunately, the Google settlement also gets some of the same things wrong that Freelance did: a low-ball damages model for past infringements and, most disturbingly, an illegal “license-by-default” mechanism for everyone who didn’t affirmatively opt out. So I have opted out of Google myself, and I’m urging others to do the same before the deadline next month. For details, see my blog Freelance Rights.
The reason I say the Google Books settlement is going down, however, has nothing to do with whether it satisfies little ole me. The more formidable hurdle is that it doesn’t satisfy a whole passel of key players in the emerging paradigm of electronic intellectual property rights -- and these players are making their voices heard. The Internet Archive has filed objections, complaining that the deal would give its competitor not only a most-favored-nation status in the book-snippet market, but an effective monopoly. Similarly, prominent librarians question whether Google is being handed undue control over “orphan works” whose rights holders can’t be located, to the detriment of public access. A consumer group has asked the Justice Department to intervene.
For my money – or as I like to joke, for my unremunerated license – the most intriguing alarms were sounded by the Register of Copyrights herself, Marybeth Peters, at a recent conference at Columbia University. (View the remarks here.) In so many words, Peters made the point that litigation should not be allowed to usurp the authority of Congress to amend copyright law. As in Freelance, the Google settlement goes way beyond the settlement of damages for past copyright infringement, by exploiting the settlement agreement and notice provisions to impose prospective terms. In these class actions, the defendants co-opt the named plantiffs – in the Google/Authors Guild’s case, by capitalizing and legitimizing a Book Rights Registry – to make them virtual extensions of the companies’ marketing and product-development divisions.
I hate to break the news, but you can’t do that.
As the country’s chief copyright official noted at Columbia, Google proposes to establish a publicly sanctioned, yet privately privileging, “compulsory license.” I favor compulsory licenses and royalty systems in principle, but they must be industry-wide and result from comprehensive negotiations involving all the stakeholders: authors and other creators, publishers, and information consumers. What’s good for Google may or may not be good for all of us.
To sum up in theater terminology, the preview productions of the Google Books settlement have bombed in New Haven; I don’t think the show will make it to Broadway. The Authors Guild and lawyer Michael Boni must be in despair – not another multimillion-dollar payday in indefinite limbo! On the other hand, according to my sources at the Googleplex in Mountain View, the defendant is absorbing the bad reviews with aplomb. Google is much too focused on taking over the world to waste time digging in its heels over what five drunks in a bar are telling it is a sloppily crafted mechanism for doing so.
My suspicions in this direction were reinforced by the enterprise reporting of Anita Bartholomew, a fellow feisty freelance writer and blogger. Anita, in a post you can read here, discovered that the smartest move by authors who want to work with Google, but are negative or unsure about the complicated class action settlement, is to opt out and then make their own deals directly with Google. Anita shows that the terms of the Google Partner Program, of which any author can avail himself at any time, are far superior to those of the settlement.
Again – Google will getcha, coming or going, this way or that. If the corporate chieftains have the vision to retool this deeply flawed settlement and spearhead a real and more equitable comprehensive solution, then their brand will still be able to claim the lion’s share of the credit for moving the legal and logistical ball down the field.
That would beat the stalemate of Freelance, in which the defendant publishers stubbornly cling to their mission impossible of transforming new tech into the new feudalism.
Frequent Beyond Chron contributor Irvin Muchnick is author of Wrestling Babylon and the forthcoming Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. Follow his tweets at http: //twitter.com/irvmuch.