Google Book Settlement: Why I Opted Out

(To my fellow writers/authors)
It has been a long and arduous process upon which Google has sent many thousands of book authors around the world in the last few months. (If you are unfamiliar with the particulars of the Google Book Settlement, I have outlined them in a PDF document).  In a nutshell, Google in 2004 entered into apparently illegal agreements with several libraries in the U.S. and elsewhere to digitize books and make them available to its website visitors. Over seven-million books were digitized without permission from the rights holders. In 2005, the Authors’ Guild in the U.S. and the publisher McGraw Hill launched class action lawsuits against Google on behalf of authors and publishers. In 2008, Google came to an agreement with the authors and publishers to settle the lawsuits, subject to court approval. The agreement would compensate rights holders for the illegal scanning and create a Books Rights Registry that would allow Google to continue digitizing books covered by the settlement (all those in the world published prior to 2009) and pay the rights holders (those that register with Google) according to a formula.

As part of the agreement, Google had to contact as many rights holders (authors and publishers) as possible and provide them the right to opt-out of the settlement by May 5, 2009 (postponed to September 4, 2009) and thus retain their right to individually sue Google and the libraries over the illegal scanning. If rights holders wished to remain part of the settlement, they did not need to take any action, except perhaps notify Google of the books to which they have rights. These decisions had to be made prior to the court ruling that would ratify/modify the agreement (original hearing set for June 11, 2009 and later postponed to October 7, 2009).

After I was contacted by Access Copyright (Canada’s copyright licensing agency) about the proposed settlement, I visited the Google Book Settlement website and was overwhelmed by the complexity of the agreement. As has been mentioned elsewhere, you really need to have a lawyer look at it to determine how you are particularly affected by the settlement. Of course, most authors do not make enough from their writing to justify the cost of a lawyer, and many depended upon the opinions offered by Access Copyright and the various writers’ organizations around the globe that did seek legal council. I did attend an online seminar about the settlement, sponsored by Access Copyright. Although the seminar did help clarify certain issues, it did not make easier the decision to opt-in or opt-out.

As the original deadline of May 5, 2009 approached, I was leaning toward doing nothing and opting into the agreement by default, as had indeed been recommended by The Writers’ Union of Canada. After all, my book sales were not great and the Google settlement could in the long run aid my sales. However, prior to the May 5 deadline, several other writers’ and publishers’ organizations successfully petitioned the U.S. court to postpone the opting out date because many writers and publishers had not had time to properly review the large and complicated settlement. Thus, the new opting out deadline was set by that court at September 4, 2009, and the new court hearing date is October 7, 2009.

Upon reading the arguments presented by the opposing organizations and writers, I became further confused about what my specific decision should be. Well, after carefully weighing both sides of the arguments and hearing from colleagues whose opinions I respect, I have decided to opt-out of the agreement. The following are my reasons:

  1. The Google Book Settlement is the ratification of an unprecedented grab of copyrights neither Google nor the offending libraries had legal rights to obtain. The settlement places digital rights under one roof, totally disregarding the individual circumstances for which original rights were granted to publishers in the first place, and seeks to sell those rights without individual consultation with the copyright owner. In other words, this settlement justifies the stealing of copyright.
  2. The reverse onus provision of having to opt out of the settlement by a certain date or you agree to the settlement by default goes against all fair-dealing and logic as to how such deals should be made. I own the rights to my books! Someone cannot come along and declare that he owns certain rights to my books unless I tell him by a certain date that he does not. That is stealing my rights, and I will not let that happen. If you want a licence to publish my work, then you must negotiate with me as an individual, and I retain my right to refuse that licence if we cannot come to an agreement!
  3. The fact that the court hearing to determine the fairness of the agreement will occur after the opting out deadline means that rights holders must decide on a settlement that could radically change. Again, this goes against all logic (not that the law ever attempted to be logical). I will not agree to be a part of such an important settlement if it is not yet finalized.
  4. The proposed formula to pay compensation to rights holders is complicated by a series of unknown charges and fees that could reduce payments significantly. I must have a better idea of what I am agreeing to in terms of compensation.
  5. Google has not demonstrated it is capable of protecting copyrighted work from being pirated and sold without compensation to the rights holder. Indeed, it would seem that one of Google’s reasons to exist is to make all information available as freely as possible. There is no guarantee in the settlement that Google will protect the works from pirating, or indeed ensure that any errors in the reproduction of such works will be corrected.
  6. Google is not the only company marketing digital material. Giving all these rights to one company flies in the face of free trade and fair dealing. I prefer to choose among a variety of competing possibilities who may value what I write.

The list goes on, but those are my main reasons for opting out. As I have stated before, every author’s circumstances are different. You may believe that Google offers the best deal possible for your books, given when they were published, where they were published, sales history, and the rights you continue to hold. However, I do not believe the Google settlement is best for me and my books.

So, what’s wrong with that?

www.donmeredith.ca

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About Don Meredith

I am a writer and biologist living in Alberta, Canada. I write a monthly column for the Alberta Outdoorsmen magazine.
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6 Responses to Google Book Settlement: Why I Opted Out

  1. Merna Summers says:

    Well-reasoned and well-said, Don. I too have waffled back and forth on this, but in the end decided that the probably tiny advantages to staying in were greatly outweighed by the dangers. And, of course, what Google tried to do in grabbing what they had no right to smells to high heaven.

  2. mgkizzia says:

    Class action suit?
    I still wonder why no one has said the words “criminal prosecution.”
    – Michael

  3. Mary W. Walters says:

    I can see your points, Don, and they are very well thought re: principle. But an individual standing up for principles in this situation is a bit like a swimmer trying to stop a ship from advancing by holding up her hand. We writers can and often do shoot ourselves in the feet by being so principled and defensive. To me, here is a GREAT opportunity for promotion of my entire writing career. If someone can find my book on google, which is out of print, and no one will find otherwise, and read a paragraph or a chapter of it, and like what they have seen, maybe they will take the link to my website and buy the SAME book (which I will by then have reissued as an ebook or POD book) from me directly, or they will buy a novel that is IN print by then, and published after 2009. I love this chance to join the digital community. We’re in the same boat as the musicians now — we cannot protect text. We need to stop swimming as individuals and climb on board with the huge community of other writers who are in the same situation we are. People notice ships. Not swimmers.

  4. Don Meredith says:

    You have good points as well, Mary. And I argued them as well (both to myself and others). However, the bottom line for me is that by opting into this settlement, we really don’t know what we will be getting. We don’t know what that 63% of revenue really means once Google and the Book Registry takes their expenses. We also don’t know how that relationship may be redefined once the court hearing is held and a ruling made. Also, by opting in, we allow Google to sell our rights for whatever purpose without further reference to the rights holders. Sure, someone may use the Book Search feature to find your web site and buy directly from you. But once Google has your rights, I imagine they will make it more desirable (and easier) for the customer to deal with them. We just don’t know. If Google wishes to deal with me on an individual basis, that’s one thing. But this settlement is too broad and confusing. I much rather continue swimming instead of being lost in the bowels of some huge hold where I have little control over being found. The Internet is still much larger than Google, and there are and will be many alternatives to marketing. And this may become clearer once the court makes its decision.
    Don

  5. Katherine Gordon says:

    A fellow author refers to Google as ” a marauding bunch of pirates.’ I know who I don’t want to be swimming with, thanks very much.

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