For authors who do not opt out, the settlement if approved would impose a complex scheme for the wholesale allocation of rights and remedies, and compensation for exploitation of those rights, in the digital world. And it would cement that scheme in perpetuity in an area of commerce that has seen explosive growth in just the last five years, and that may well prove to be the most important and valuable channel for the distribution and exploitation of creative works.
If you own rights of any value, now or in the long term, you will want to avoid this contraption like the plague. It creates what will inevitably be a big, costly impersonal bureaucracy, all of whose expenses you are required to pay, to serve as middleman between you and Google. The entity owes no fiduciary duty to you, the detail in the accounting will be nil, you personally will have no rights of audit, and your ability to step back through the levels to obtain accounting detail will be nonexistent. The deal negotiated between Google and the plaintiffs—now excitedly looking forward to running BRR themselves—is, as to be expected, largely to their benefit, not yours. Their expenses (of unlimited scope) all come off the top. … This structure is in stark contrast to the traditional moral right of the author to be paid on each copy sold of his work, first in line. Now, the author is to be nothing but a fully subordinated back end net residuary, with no right, still less any opportunity, to question the layers of faceless middlemen in front of him, or to pierce any of their thick corporate veils. To sign on, you would have to trust these entities fully. Behold the Settlement Agreement in its 385 pages of clotted glory. You trust that thing?
Ultimately, the settlement represents a triumph of administrative convenience over substantive rights … and, naturally, the writers are the ones who get screwed the most, but the proposed system is really very unfavorable to everyone involved. Except the lawyers.
Our problem is that the people at Google don’t really get books.
They want to believe that books are just primitive webpages, nothing but more information to be organized for the benefit of everyone.
But websites are built for the web. Books were not written for Google Library. Forcing publishers and authors to opt-out, instead of opt-in, is not fair. It’s coercive.
Not to mention a processing nightmare. With the opt-in program Google Print, in which publishers provide the books (and permissions), Google has had many delays. They even sent a Google Gumby clock as an apology to participating publishers. I can only imagine the mess that Google Library could turn into, and the errors that will result.
There has been scarcely any discussion of the core issue for authors: Whether the settlement would fairly compensate writers of non-orphaned, in-copyright books for the overtly commercial for-profit electronic reproduction and sale of licenses to their work. I and most other writers who have tried to study the settlement think the answer is, “No”.
There’s simply no reason – other than Google’s greed … for compensation to known rightsholders for past infringement for profit by Google as a commercial entity to be tied to future licensing terms, terms for orphan works, terms for “fair use”, terms for non-commercial users and uses, or a license or forfeit of rights by default.
Opting out is the safest choice.
All of the purported benefits to class members under the Proposed Settlement's commercial arrangement depend on the successful establishment and operation of the as-of-now non-existent Book Rights Registry. While the Proposed Settlement requires Google to make a monetary contribution to establish the Registry, the Agreement does not guarantee the Registry will operate as planned, or that future funding will be sufficient to ensure it can fulfill the functions described in the Proposed Settlement. … What happens to class members of the Registry does not operate as planned? If the Registry does not make timely payments? If the Registry runs out of money? It appears that under the terms of the Proposed Settlement Google would retain all of the rights obtained from copyright owners by virtue of the Settlement Agreement, while copyright owners would have no apparent mechanism for redress or ability to rescind the transfer of their rights to Google.
Moreover, even if the Registry operates as planned, some of the purported financial benefits to class members are uncertain. For instance, … while Google will pay the Registry 63% of revenues generated through the use of class members’ intellectual property, it is unknown how much of that money class members will receive because the Registry will retain a share of that revenue to fund its operations. Neither the Settlement Agreement, nor the motion in support of preliminary approval provide any information that would allow the Court (or class members) to reasonably determine how much money they are likely to receive for participating in the commercial component of the Proposed Settlement – or when class members are likely to start receiving payments for the various uses of their intellectual property.
I don’t see much likelihood of any small or self publishers making any measurable profit by remaining in the settlement. There are far too many unknowns, undefined terms, and vague conditions in it.
Putting the onus on writers to contact Google is … 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 …
The NWU opposes the settlement because it interferes or might interfere with the relationship writers have with their publishers … The settlement makes assumptions about electronic rights that writers may or may not have assigned to publishers and it sets up an unfair binding arbitration process to resolve disputes between writers and publishers.
— Larry Goldbetter, president of the National Writers Union
Although the Google settlement gives authors some control over display and other incidentals, if you do nothing, … you’ve also agreed, by default, to mandatory arbitration …
Here’s the gist of what you need to know about arbitration: mega corporations love it because they almost always win in any dispute.
If you believe Google and this settlement will do business for you… then give them your books. … And if in the process they expose the entire contents of every book you have given them… you’re stuck and tough crap on you. SUE US!
Personally, I would quit the industry before having to trust Google with my copyrights.
We reject Google’s willful misinterpretation of “fair use” in copyright law to mask outright piracy.
Google’s one-size-fits-all opt-out forms can only lead to confusion and error. Depending on the work, the author may control all rights, or have licensed print rights to a publisher (though sometimes with approval of sublicense deals) but the author may control electronic and foreign rights.
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.
Some of the particular problems we have identified include:
The Google Settlement is a bad deal for everyone except for Google. For Google, it eliminates the cumbersome need to contact copyright owners for permission to copy their works, and the need to worry about their suing if Google acts without permission. For all companies who want to compete with Google, those needs remain. Google obtains a huge market advantage. It may be cumbersome to deal with property rights, but that is no cause to trample on them. If carried out, the deal will create a repository of digital books but do so by wildly restricting the rights of copyright owners to control their own property, and by creating a new monopoly – Google.
The publishing industry is already on the wane. This Google settlement may sound its death knell. Independent bookstores are closing like the livery stables of yore, and losing business to yet another online competitor may close down the entire literary operation, with thousands of publishing house employees, bookstore employees, and authors left stranded. If we thought Amazon was tough on the business, this new venture will shoot it in the knees.
The saving grace for publishers may be e-books… a new way of reading that may rescue the industry. Yet the Google Book Settlement will undercut this possibly vital new scheme.
The Google settlement will essentially rewrite copyright law by allowing the company to use the material without permission, without negotiating how the material will be used, and without negotiating compensation and payment provisions. It is particularly offensive because the court will be saying the government doesn’t have to protect authors’ rights, but authors’ have to protect their own rights. This is a significantly different approach from that which prosecutors and courts have taken in the cases of music, game, and software file sharers who have violated copyright on the Internet.
If the court accepts the settlement, authors will be victimized for the sake of a $150 billion Internet company and the world’s biggest publishers. Where is the equity and the justice?
Authors should not even be forced to put pen to paper to explain why Google's outrageous scheme needs to be stopped.
The author’s fundamental right is to control his or her work. The author should not be forced to comply with a proposed settlement’s non-statutory formalities to protect the author’s rights. … Neither the parties nor the Court have the power to amend U.S. copyright law, creating an alternative regime by an ad hoc settlement.
The deal far exceeds the bounds of a typical legal settlement. It would tread directly on Congress' territory, privatizing important copyright and public policy decisions historically made by Congress. It abuses class action procedure to create an exclusive joint venture between Google, the American Association of Publishers (AAP) and the Authors' Guild, strengthening Google's dominance in search and creating a cartel for the sale of digitized books. It would bind nearly every copyright owner of every book published before 2009 throughout the world, and thus create, as the U.S. Register of Copyrights said, “a compulsory license for the benefit of one company.”