Tom Purdom on the Google Settlement

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 Yesterday I gave you my take on the Google settlement, and I did my level best to be calm about it.  I am not calm at all.  I am outraged and extremely upset, particularly at the Authors Guild, which suggested to Google that they assume the right to sell out of print books without the permission of their authors.

But there's more than enough angry rhetoric in this world already.  So I'm controlling myself.

However, because we can use all the calm and reasoned analysis on this matter we can get, I asked Tom Purdom for permission to post a letter he sent around to his writer friends yesterday, and he graciously permitted it.  Tom is not only an intelligent and thoughtful man, but one of the least hysterical people I know.  I always listen carefully to anything he has to say.

Here's what he has to say on this issue:

Tom Purdom on the Google Settlement

This is going to all the writers on my list, along with some others who may be interested.  This afternoon I attended the NY workshop on the Google settlement conducted by the National Writers Union and the American Society of Journalists and Authors.  The main speakers were Lynn Chu, agent and lawyer, who opposes the agreement; Paul Aiken of the Authors Guild, who spoke in support; and a law professor, James Grimmelman who has been offering nonpartisan commentary.  Michael Swanwick attended also and we both took notes.

CONCLUSION

Michael had already opted out of the agreement and I just did.  It has many virtues but for me the crux of the matter came down to this: the settlement would give Google a dominant, smothering position in electronic publication.

Aiken defended the settlement on the grounds that it would open up a new market for writers, since it would make out of print books available online. But this is already happening, and it's been going on for some time. Fictionwise and Amazon's Kindle are just two examples.  And it's happening in the old fashioned way.  Publishers are starting companies and programs and signing contracts with individual writers. Under the settlement, Google could become the website everybody turns to and we would all be forced to accept the collective terms they can enforce under the settlement.

If you opt in to the settlement, in addition, you are essentially signing a contract without knowing what the terms are.  The settlement may be changed as litigation proceeds.

Even as it stands, it's a complicated agreement most of us can't take the time to study.  In the discussion, Lynn Chu kept focusing on the implications of the agreement and Aiken kept insisting her fears were groundless.  But to me she was simply noting that the language of the agreement may have implications we don't understand.

THE PRO SIDE

Aiken outlined the positives of the agreement.

To summarize:  It applies only to out of print books.  Readers may view snippets for free, but never more than twenty percent of content.  Readers must pay for a complete online view and the author sets the price. Libraries will have one machine on which complete texts may be viewed and printed copies, made at that one machine, will be sold on a per page basis. Institutions, such as universities, may purchase subscriptions to the service, one year at a time.  Google will receive thirty-seven percent of all money collected and the rest will be distributed to the authors, through a Book Rights Registry which will administer the system and subtract its administrative expenses from the author's share.

Authors may withdraw their works at any time.  They may withdraw selected works or all their works.

That doesn't look too bad.  But I think it will be hard for writers to opt out if it becomes the single site most readers turn to.  And that limits our ability to negotiate.

OPT IN VS. OPT OUT

The settlement grew out of a suit the Authors Guild brought against Google, as a class action.  The Guild has settled on behalf of all members of the class.  If you want to opt out of the settlement, you must take a positive action.  If you don't do anything at all, you have opted in.

Many people object to the settlement on that ground alone.  Normally, people reprint our works because we have granted permission.  They have to get a positive response.

There seems to be some question about the legality of opt out.  It apparently stretches the concept of the class action suit.

OPTING OUT

Go to googlesettlement.com.  Click Opt Out.  Fill in the form.

When Michael tried to opt out awhile back, you had to list every individual title, with all sorts of information.  You no longer have to do that.  Don't be fooled by the optional request for titles.  It really is optional.

Lynn Chu recommends that you put the following statement in the box calling for titles:

This opt out request should be considered to apply to all works whatsoever of mine that appear in any and all books either by myself or by others.

The opt out deadline is January 28.


STANDING

The settlement will be appealed if the court approves it. But writers and organizations can only appeal if they have opted in.  People who've opted out can't appeal because they have no standing.  That appears to be one of the peculiarities of class action law.

Michael Copabianca sat on the panel as immediate past president of Science Fiction and Fantasy Writers of America.  Some writers and organizations, he said, have deliberately left one or two works in the settlement so they can appeal.

Individual writers can do the same but one of the antis noted that a judge might feel you favored the settlement if you had opted in.  They suggested instead that you send your opinion to the court or sign the petition Ursula K. Le Guin is circulating.

AN UNANSWERED QUESTION

The Authors Guild has defended the settlement on the grounds that the courts might decide in favor of Google if the case went to trial.  That would mean the court would decide that Google was engaging in fair use, and anyone who wanted to could do what Google is doing.

I have assumed the Guild sued Google over Google's right to publish copyrighted material on the Web.  But some remarks made at the workshop indicated the Guild suit deals with Google's SCANNING of the works.  I didn't have a chance to ask anyone about this.  But if it's true, it seems
to me it undercuts one of the Guild's main arguments.

James Grimmelman said he feels the court will probably find that scanning is fair use.  But he also feels Google's publications plans would definitely be seen as a violation of copyright.  And it's publication that most writers are concerned with.

A PERSONAL NOTE

In the early 80s, a magazine publisher added a third page to its contract granting the publisher all electronic rights.  Damon Knight issued a letter urging writers not to sign that page (which could be signed separately) and the publishers soon withdrew it.

As Damon said at the time, no one knew what those rights were worth.  The publisher was obviously hoping writers would sign just to avoid conflict. Why risk losing a sale over a hypothetical possibility?

We didn't sign and the publisher eventually withdrew the third page.  The publisher's act set off alarm bells in the mind of all writers familiar with the history of science fiction.

From 1926 until 1950, science fiction was a pulp magazine genre.  Writers like Clarke, Bradbury, and Asimov assumed their stories would be printed in the magazines and never reprinted.  There were no science fiction book lines and no science fiction anthologies.  Many writers signed away those rights in "all rights" magazine contracts.  Why not?  Nobody was ever going to reprint their stuff.

Then the book publishers discovered there was a market for science fiction and started printing anthologies and novels taken from the pulp period.  And writers had to live with the contracts they had signed in another era.

It seems to me Google is making a Grab, to use one of Damon's terms.


I hope you will find this useful.  I've done my best to make it accurate.

Tom


And this is Michael again . . .

I want to remind everybody that you have six days in which to decide whether to opt in or opt out.  If you don't make a decision by January 28, 2010 (that's next Thursday), then you have legally opted in.

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