The lawyers will get $30 million—does that mean the authors are getting screwed?
The Honorable Denny Chin
United States District Judge
United States Courthouse
500 Pearl Street
New York, New York 10007
August 10, 2009
Dear Judge Chin:
I’m a published author whose work is at stake in the proposed settlement for The Authors Guild, et al., vs. Google, Inc.
I’m not a lawyer, so you’ll have to excuse my lack of legalese, but… this deal stinks. Please put an end to it.
It’s wrong on so many levels.
First, you have attorneys manipulating class action law to make an entire profession – writers! – a “class.” That’s not what class action law was created for. What’s next? All bakers? All plumbers?
The settlement is 323 pages designed to make lawyers wealthy.
Paul Aiken, the Executive Director of the Authors Guild, confirmed for me this past Friday that the law firm representing the guild will make $30 million dollars if this settlement happens. Google will pay them that money. That’s an incredible financial incentive to make this deal go through, regardless of whether it’s in the best interest of authors.
The truth is that a large number of authors are terribly confused or in the dark about this case. When the Department of Justice recently announced that it’s pursuing an antitrust investigation into this settlement, I wrote a letter to Deputy Assistant Attorney General William F. Cavanaugh in support of the investigation. Like many writers, I want to know if mischief got us to this point.
I made my letter public, and an amazing thing happened. I got emails from authors all over the country saying that my letter was the first they’d heard of the settlement.
That’s not surprising. Writers are individuals. We’re not a “class” that’s somehow reachable with one shout.
Instead, you’ve got two parties forging this settlement who had nothing to do with any of the creation of the books at stake. Yet somehow they’ve been able to go to court to push through a deal over rights to books that neither of them owns.
Who put them in charge? I certainly did not, and I say that as a dues paying member of The Authors Guild. My membership does not give the Guild any legal rights to my books.
It’s my understanding that under federal copyright laws no one is allowed to copy, reproduce and distribute my books without my prior permission. That’s stealing. If someone steals from a store, they’re prosecuted for shoplifting. This settlement rewards the thief.
We’re in the middle of the digital transformation of the written word. At issue in this case is whether the people who create content continue to own all the rights to their work as they always have. This settlement changes that.
The Authors Guild has been out publicly shouting down anyone who disagrees with this deal. Just today the Guild sent out a mass email scolding a dissenter and claiming that the settlement allows rights holders to “retain complete control over whether, and how, your book is displayed or sold to users.”
Really? If we’re retaining all the same control as before, then why do 323 pages and $30 million dollars need to exchange hands?
I’m an individual. Not a “class.” I wrote every word of my books, and I made individual deals in order to get each one published. That process takes years. If someone wants rights to my books, they can take a few minutes to ask me first. That’s not too much to request. It is, in fact, the law.
Copyright law as it exists is pretty straightforward when it comes to the permission process. This whole case represents an unreasonable change. It gives a corporation access to copyright protected work first, and then requires authors to study a 323 page legal document and decide whether to “opt out.” This is not an improvement to current copyright law. It undermines it.
For all of these reasons, I object to The Authors Guild, et al., vs. Google, Inc. settlement. Please intervene and stop it.
Sincerely,
Scott James
aka Kemble Scott, author of the novels SoMa and The Sower
9 responses
Word. My first novel was available (almost entirely because of the way it was typeset/number of pages available) a month before it hit the frickin’ shelves in hardcover! Stumbling on it in a google search was the first I’d heard of this whole scanning crap.
I’m also a writer, and I have to partly disagree with this letter. Your premise is accurate–the lawyers are going to be the people who make out the best, at least at first, in this deal. They’ll get their cash. But I think you’re missing the bigger picture. You’re complaining that 1) opting out is difficult and 2) an author shouldn’t have to opt out in the first place.
First of all, opting out would be a bad long-term decision, in my opinion, because for my daughter’s generation (she’ll be 19 in a few weeks), if it’s not digital, it doesn’t exist. The idea of going to a library to get a book doesn’t even occur to my students–they access what google gives them online. (Whether that’s a good thing or not is another matter all together.) The next generation of libraries will probably be some combination of archive of collector’s items and databanks of scanned, searchable texts. Even fiction and poetry will move online, as e-readers replace paper. My grandchildren (if I have them) will think of paper books as fetish objects. So the easiest way to ensure that your copyrighted work disappears forever is to refuse to allow it to be scanned into a digital library. By protecting your copyright, you could condemn your work to invisibility.
Second, the reason for the switch from opt-in to opt-out is a pretty reasonable one. Most libraries which started the scanning process–because this wasn’t an original idea for Google–tried clearing copyrights first and discovered that so many books are orphaned (i.e. there’s almost no way of finding out who actually owns the copyright) that it became cost-prohibitive to do so. At that point, the options were to condemn those books to disappear or to scan them anyway and set up a way for copyright holders to be compensated should they pop up. It’s not a perfect solution, but it’s better than letting the books vanish forever, which is what would happen otherwise, because no one, not even a library, is going to open itself up to that kind of legal trouble without some protection. Google is doing this because they have the resources to see it as a long term project that will, they hope, make them a profit, but they’re not going to be raking in the cash anytime soon on this. They’re putting a lot of money into it up front with no guarantees that they’ll make it back.
The compromise isn’t perfect. I worry that the license Google is receiving to do this will morph into a virtual monopoly that will preclude other companies from competing in the market. But your objections to the project in general seem to miss the point. Your copyrights aren’t being taken away from you–you’re just going to have to take a step or two to enforce them in a new medium–but as a result, the rest of the world will have access to a whole bunch of information that was effectively invisible to most and would disappear otherwise. There’s no way that equation balances toward the individual in my mind.
As a writer and photographer I’m horrified by this arrangement at first glance and certainly in sympathy with the open letter. I take the point that Brian Spears makes about orphaned books, etc. and also that copyright law, like patent law, is founded on protecting what best supports the overall social good and not on individual property rights per se. However, there are other points to consider and this process seems way too rushed, while also being conducted over the heads of too many of the actual writers, or indeed without their knowledge — not a good way to go about a paradigm shift pertaining to a change in the inherent right of any citizen to ownership of their original writing.
The novelist who left the first comment seems to be the “orphan” and not his or her book — if it was scanned and on Google before it was ever released. In other words significant control of it was lost to the author before it was published and NOT to the world long after it was published — quite a difference. I’d be annoyed too by such a discovery — in fact I have been when my photos were used without compensation by two major SF media corporations (in one case without permission or even consultation). I don’t see any excuse for that type of grab — commercially or philosophically (just in case those two don’t always match). This type of activity is called “scraping” by corporations who find their online publications have been copied by others without permission, and the choice of word suggests clearly enough a process that is disagreeable for those scraped.
I also agree with the open letter’s point that authors cannot be treated as a class action category in terms of the entire potential of their activity as writers — class actions lawsuits have been based on narrower and more specific grounds than that, and this much broader type issue of property rights has been resolved by more fundamental protections from government vis a vis the citizenry in general — so having the judicial branch of government make such a decision based on one case where an entity with a limited umbrella of representation like the Authors Guild is involved seems way too narrow and presumptuous a basis to settle such a broad question of rights previously guaranteed to every citizen, not just the membership of one guild.
The recent Amazon kindle fiasco regarding, appropriately, 1984 and Animal Farm, ought to alert us to the fact that texts can be made to disappear as readily as they appear or are “preserved” thanks to centralized digital distribution and DRM systems. It has been crossing my mind what Orwell himself might have imagined the Powers That Be would do with such an ability; rewriting the news or history sure gets a hell of a lot easier if you control Kindle or the like and everyone’s published writing is on there, not on paper.
It’s not about whether we can trust Google of today, but what powers we’re handing over to the future Digital Librarian of Alexandria — will authors also have to check that their texts, when republished without consultation, don’t get changed in whatever way, and what recourse will they have should that happen if we’re now handing over publishing rights to entities the authors never dealt with? Doctoring photos and movies has become easy — doctoring texts is as old as texts themselves. One benefit of a 3D artifact like a paper or vellum book is it is not so easily doctored — and another is it can be disseminated and hidden in very different ways than a digital artifact. Sometimes digital is a better way to escape censorship, but Kindle and Google’s Chinese project, etc. might give us pause to consider that there may be other times when it works the other way around. Mr Spears is right about how many paper texts may, or already have been, lost to history. But it’s also true that the Book of Kells is still readable while my old floppy disks from the distant 1990s are not. (This accelerating obsolescence is an issue I’m also quite conscious of as photographer working in digital formats.)
By the way, not all of us write for the money. There are those who write to get their ideas across. The two motives are not always best served by the same tools. Keeping that disinction in mind also goes to the heart of this matter and the potential perils. In fact we know as writers that the first amendment actually protects political speech more than commercial speech, and I think we know why and how much is at stake regarding that. Again, think Samizdat press, etc. — that’s another way to get around a firewall, and I don’t think the dissidents typing away in the small hours would have been persuaded by a money deal to do otherwise.
Sure, the genie is out of the bottle on this issue, and there are questions of major paradigm shift in information and communication here way bigger than even this case. Look at the plunge in the circulation of paper editions of major newspapers globally, led by SF’s own Chronicle. Mr. Spears is right about the new readers of today and tomorrow doing digital and away from paper. As a high school teacher I see this too — and there’s no bigger or more urgent question in education as to what’s happening with this already, let alone the long-term implications and how to respond.
It will take the best thoughts of a great many people, and much discussion and bargaining, to deal with this ongoing change. We have to adapt realistically while not opening the door to losing the integrity of our information systems or our intellectual property rights as individuals. The trend sometimes looks liberating, but other times feels like the common intellectual property of humanity and that of the individual are being subjected to a hostile takeover from Big Brother that echoes the colonization of already occupied lands during the age of imperialism. Let’s not even get started on what water rights will look like, for example, by the time this whole author copyright thing gets to where it’s currently headed.
I don’t have the answers, but I’ve got a mounting number of questions, so thanks to those who wrote here ahead of me for raising important points that ought be considered. I’ll be interested to see any following comments.
Not everyone agrees with the Authors Guild “settlement†“agreementâ€. See http://beattiesbookblog.blogspot.com/2009/08/guild-responds-to-second-wme-letter-on.html
I’m an Authors Guild member who — like many others, I’m sure — finds himself in a “David vs. Googleiath†situation.
A few thoughts:
I agree with the idea of making “orphan” books available… no one has a right to them, so why not share them with the world? But for books with traceable copyrights, Google’s high-handed assertion that it has the right to scan them and disperse them as it wishes, for profit, is foul.
Our grandchildren seeing physical books as “fetish objects”: maybe. But I don’t see it. I recently purchased three downloadable books and I can’t bring myself to read them on the screen. A friend asked me to read his novel a year ago and provided it in pdf form: I still haven’t read it. I can’t read on the screen. Maybe I’m aberrant, but I don’t think I can be the only one.
GREAT point about the Book of Kells versus 1990s era disks! Bravo.
Like Kemble Scott, I’m an author, and his letter inspired me to write my own objection to the court. You can read it if interested at http://erikamailman.blogspot.com/2009/08/my-letter-to-google.html
. . .
You can call it foul all you want, Erika, but the reality of the situation is that if Google, or any other entity, has to make sure the copyright is clear or that the book is orphaned before it scans the books, then none of the books will be scanned. It really is that simple, and the proof is in the fact that university libraries have started the process in the past and stopped because 1) they didn’t have the financial resources to settle the inevitable lawsuits and 2) they weren’t in it for the profit, like Google is. Mind you, Google’s not expecting to make a profit on this any time soon, and in fact they’ve acknowledged that it might never turn a profit, and if this deal or one like it doesn’t protect them against lawsuits, they might abandon the project altogether, in which case lots of books will, unquestionably, be lost to the ages, even if someone else comes along later and takes up the project.
As for not being able to see physical books as fetish objects, I can only say that when I was 20, half a lifetime ago, I couldn’t have imagined watching a movie on my mobile phone, or what’s more, wanting to. The reality is that even though wood, and by extension paper are renewable resources, they’re not infinitely renewable, and it won’t make either financial or ecological sense to print most books in the not too distant future. What’s more, the next two generations will be raised reading things from a screen–the emotional attachment we have to paper books will resemble the attachment I had to my turntable and vinyl records when I was 15, or the affection some photographers still have for film instead of digital. The world is changing, and we can either change with it or we, and more importantly, our work, can be forgotten.
This is the most ridiculous thing I have ever heard. I am quite dubious as to any claims made by Google that this is for the good of posterity. Who gave them the right to decide that?
Ok, I’m going to try this a different way. I am taking ownership of Connecticut. I have arranged to collect all the deeds for the state. Do I have them all in hand? Why, no, not yet. What about all these people and institutions that say they should control the sale or purchase of their own property? There are details we need to iron out. Progress does not happen in a day. You say you bought your land, built your house, created it? We need to not be so individualistic about this.
Look, if I run the oversight of this, it will be better than all these people owning pieces of land, much of it private. This way everyone who wants can have access to everywhere in CT. They just need to work through me to get this accomplished. This whole “private ownership” thing flies in the face of progress and access. We are doing everyone a favor. You say people want to continue to live in these house even if they no longer own them? We still have to look at the good of the whole.
Obviously an analogy like this has its limitations and is not a perfect illustration, but many of the most important aspects of this Google deal are addressed by it. So am I going to publish my next book so that Google can take it over? No. I, and many others of us, will find ways to beat this. (PS, I know about the “opt out” option.) Let me ask you this, many of us who have published still know very little about this “settlement.” How has our participation been sought?
I am aghast that people involved with this monstrosity feel that they are doing society a favor by digitizing books for which no copyright information is available. The rationale being “there is no one to stop us, so we are taking it.” Shame, shame, shame.
I too have published a novel. In the UK and in the US, under two different titles (publishers’ decision). This was over 30 years ago, so my agent has retired and his successor will never have heard of me, nor have a current address for me; it is therefore likely my work will be considered “orphaned”. I am not a member of any Writers’ Guild or similar organisation. I have also never heard of this plan before reading this article. This leaves me wondering how to find out whether my novel has been scanned and, if so, to whom I should turn to discuss royalties and similar issues.
I realize that almost 1 1/2 years have passed since the most recent comment was posted, however I cannot help but share my admittedly unexpert opinion. I am 28 and in those years have derived more pleasure from and devoted more time to reading the work of authors than any other art form or form of entertainment. I share this mostly to attempt to illustrate the debt I owe the many authors who’s work I have enjoyed but to try to make clear that the last thing I would want is for it to become even harder than it already is to earn a living as an author and cause even one person to elect not to write the book that might have been my favorite. I have no idea if my opinion will add anything to the discussion taking place here, or whether it is far too late but I think it it worth the attempt (plus I really do not want to do my Finance assignment). I first must express my sympathies for the authors who were not communicated with sufficiently (or more likely at all), and I agree completely that both the idea of all writers being represented as a “class” as though their interests were essentially all the same, and the idea of the attorney’s who “represented” them earning $30 million are both ridiculous. That being said I think there is good in both what Google is trying to do and that their proposed settlement (the fact that it is being offered to a group whose authority to accept it is dubious at best not withstanding) appears to address many of the valid concerns raised here and elsewhere. I would urge anyone who is curious to read the Amicus Brief filed in support of the proposed settlement by a large group of people who are much better at digesting legalese than I am. I am perhaps dead wrong, however I like what I believe to be a growing number of people primarily purchase and read most books in EBook form. I can say that I personally on more than one instance been disappointed to find that the earlier works by an author I have just fallen in love with are not available in EBook format. When this has happened I do one of three things, I see if I can check the book out from a library, buy a used copy for less than I would have been willing to pay for an EBook, or and I’m a little ashamed to admit this I just move on and will likely never read the book. I would guess that whether an author would think these actions are good or not depends largely on their motivations for writing the book in the first place. If the motivation was to earn money then I imagine all three of these options seem unpleasant because I don’t think the author benefits financially from any of the three. If however the author wrote the book with the only goal of having as many people read and enjoy their book then I guess the first two would be acceptable, even if the author ends up with no compensation when I check a book out of a library or buy a used copy. I hope I have added something to a very old discussion and that my poor writing skills didn’t cause too many talented writers to cringe or shudder.
Respectfully Yours,
Ben McLain
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