The William Morris Agency Advises Clients Against the Google Book Settlement
*Check this out first if you have no idea what the hell is going on*

The William Morris Agency has come out strongly against the Google Book Settlement for its clients, citing the fact that the settlement creates a non-competitive marketplace for a whole new product (orphan books), in addition to containing provisions that will make it impossible for writers to remove books from the database after twenty-seven months have passed.

From William Morris' memo:

"In addition to waiving their right to sue Google for infringement, [authors] waive, again for the term of copyright, their right to have Google remove their work from its database if they haven't done so within twenty-seven months from the Notice Commencement Date. As of today, it appears to us that "nondisplay" uses constitute fair use, but it is impossible for anyone to predict that such use will always be the case. And if such inclusion is not fair use, there may come a time when the author or their heirs might wish to remove their work from the Google database for any reason. The authors waive that right, forever, if they do not opt out of the Settlement."

Additionally, the William Morris Agency also strongly condemns the preferential treatment that the settlement gives to Google; the extra publishing rights that Google will receive regarding orphan books that will make them far more powerful than any competitor:

"We believe that the license being given to Google to publish and display with impunity out-of-print "orphan" works (where the rights owner is unknown and estimated by the Financial Times to be between 2.8 and 5 million books out of 32 million books protected by copyright in the United States) will open the door to establishing Google as the most comprehensive database, potentially a monopoly, with unfair bargaining power...The only way for any potential competitor to obtain similar rights, absent new legislation, is to infringe, get sued, and hope to reach a settlement on terms similar to Google's. We believe that giving Google special treatment does not appear to be the way to foster a competitive market place to the benefit of you, our authors."

Not surprisingly, William Morris gives the most sensible advice possible to writers who are contemplating this settlement: opt out now (while you still can), and then opt in later with your own specially-negotiated contract (if you are still alive).

The Author's Guild, of course, disagrees with this line of thinking, as it must also disagree with all claims that are hostile to the negotiated terms of the Settlement. Whether or not it was before, the Author's Guild is certainly Google's creature now. If this settlement doesn't pass, the legal fees will probably bankrupt it forever, causing it to disappear for good in a puff of ink-stained smoke.

The National Writer's Union, however, has come out in stark opposition to the Settlement, saying the kinds of things you would expect a union to say. You know, a group that is looking out for writers and trying to get the best deal for them through the phenomenon of "collective bargaining."

"By scanning and digitally reproducing millions of copyrighted books and articles without permission by the writers, Google violated authors' constitutionally protected rights," said Larry Goldbetter, President of the NWU. "According to our understanding of the proposed settlement, writers whose copyrights were violated might receive a check for between $60 and $300 for each book and $15 per article. Compared to the number and seriousness of the violations, the amount being offered by Google to each writer is ridiculously low. Also, of the $125 million offered by Google, only $45 million is for writers. This seems way short of the amount needed to compensate authors of millions of books."

The NWU is the Local 1981 of the United Auto Worker's Union. They do things like meet with writers, have assemblies to figure out what writers think, and try to solicit the opinions of the people on whose behalf they claim to speak -- unlike the Author's Guild, a group that has been secretly negotiating the terms of this agreement with Google for years from a position of zero leverage.

Probably there are only like ten people in the NWU. BUT STILL!

More from Goldbetter:

"Putting the onus on writers to contact Google is also grossly unfair. Google is essentially saying 'we are going to steal your work and sell it under terms we dictate unless you tell us not to.' A corporation, no matter how powerful, shouldn't be able to profit from your work without first contacting you and obtaining your permission in writing."

Just so you know, everyone in Europe is also freaking out about this Settlement, now that they have awakened to what it means for rightsholders.

From the Financial Times:

"While limited only to book rights in the US, the proposed settlement, which still needs court approval, has aroused consternation among European publishers, who fear they will lose some of their rights to millions of European works held in university libraries in the US, which have been drawn into Google's ambitious book-scanning effort.

"Under the US legal deal, unless copyright holders opt out of the arrangement large segments of the works will be displayed by Google to US internet users, while readers in Europe and elsewhere are blocked. Online access to the full works will be sold by Google in the US, with the proceeds being shared with publishers."

Here's a peculiar wrinkle to the whole state of affairs: a group of French publishers filed a lawsuit in 2006, basically the same lawsuit that the Author's Guild and the Association of American Publishers filed, but they did NOT settle, and the lawsuit goes to trial next month.

Our current advice: secure your online rights, sit on them, wait and see what happens with electronic publishing, then put your work in the hands of the electronic publisher you like best once the market stabilizes.

Maybe this will be Google, maybe not.

In the meantime, Scribd is offering the best deal (80% of profits, to Google's 63%) if you need cash now.

Posted by miracle on Tue, 18 Aug 2009 19:00:53 -0400 -- permanent link

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