Notes from yesterday's Google Book Search settlement workshop

012110-googlebooksI attended a Google Book Search settlement workshop yesterday hosted by the National Writer’s Union (NWU), the American Society of Journalists and Authors (ASJA), and the Science Fiction & Fantasy Writers of America (SFWA). The workshop’s panel included representatives of those organizations as well as an agent, a professor who has been studying the issue, and the executive director of the Authors Guild, which is one of the primary parties involved in the settlement. Here are the main themes from the event.

 

“A settlement isn’t the right way to settle this.”

New York Law School Associate Professor James Grimmelmann, who remained a largely non-partisan outside observer (although he has stated he thinks the settlement should be approved, with modifications), pointed out that a class-action lawsuit isn’t the right way to determine an issue like fair use under copyright law. It needs to be addressed by the government and not through private negotiations, he said, because it has huge societal implications.

Grimmelmann also pointed out that if the settlement goes through, it’s likely Google will emerge with a huge market advantage over any potential competitors, which may negatively impact any healthy competition in the marketplace.

Paul Aiken, executive director of the Authors Guild and a lawyer, argued that the risk of losing the lawsuit was too great: if the courts found Google’s scanning to fall under fair use–as Grimmelman and at least one other legal expert think it could–then others would copy Google’s scanning project. “In our view,” he told the hostile crowd, “It would be catastropic.”

Grimmelman responded that the proposed settlement wasn’t the only valid solution, and that there could have been other paths to a compromise.

 

“The settlement is overreaching, and probably untenable.”

Lynn Chu, an attorney, author, and book agent, was the most vocal opponent of the settlement, calling it an “outrageously bad deal as a financial matter” for writers and a “typical entertainment industry scam.” At one point she implied that the Authors Guild had been misled by incompetent legal counsel, which not surprisingly seemed to anger Aiken.

Chu pointed out that the business model proposed by the settlement has nothing to do with the original lawsuit, which was solely about fair use. “You glued a business contract to a waiver,” she told Aiken, and accused the Authors Guild of appointing itself as an agent to the world’s authors.

She also criticized the proposed Book Rights Registry, which is sort of an ASCAP for authors appearing in Google Book Search, noting that it would help Google shift costs over to authors by forcing authors to take care of administrative and publishing tasks on their own dime.

“[The settlement] probably won’t survive an appeal,” she told the crowd, a sentiment that Grimmelmann seemed to agree with. Still, she cautioned, “There’s no reason to be apathetic.”

 

“The settlement isn’t really author-friendly at its core.”

Edward Hasbrouck of the NWU pointed out a worst-case scenario that could happen to an author under the terms of the settlement: You have a book included in the database, but your ex-publisher claims that because it has authorized a print-on-demand version of the book it still owns the rights, so you and the publisher agree to binding arbitration and you lose. Since the arbitration is legally enforceable, you will have permanently lost your claim of ownership over the digital copy in Google’s database.

Chu noted that Google reserves the right to audit the Book Rights Registry, but that the favor isn’t returned because Google claims trade secrets will be compromised. She also noted that authors can make their own deals with Google and don’t need to rely on the settlement.


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Note: the Science Fiction & Fantasy Writers of America hosted an online panel discussion this morning. You can read through it at http://sfwa.org/online-google-settlement-panel/.

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