43 -- Confusion, Collusion, and Copyright

"The Google Book Search Settlement is a sweeping agreement that shifts the ground on copyright, and has far-reaching implications for the future of books. Whether to opt in or out is a complex, difficult decision. Authors should strive to inform themselves as fully as possible (a tour of the links below should help with that), and should not allow themselves to be swayed by the small amount of money they may receive from Google if they remain in the Settlement." Writer Beware Blogs

Today is the last day before the last day to choose whether to opt in or opt out of the infamous Google Settlement for authors. Thanks to many great posts and sites, I have finally been able to put together a bit of a picture of what might be at stake.

A Very Brief History
A while ago, Google thought it might be a great idea to digitize and bring to the public books that have been out of print, are in the public domain, or whose copyright owners cannot be found. Many people, such as librarians, also thought this was a great idea and opened their doors to the project. Gradually, people discovered that Google's digitizing project included books in print with valid copyright owners many, very contemporary, such as Kathleen Duey's Skin Hunger.

People complained. Google insisted what they were doing was legal and could be classified under "fair rights." Authors and publishers disagreed. A lawsuit followed. After two years of expensive wrangling, an agreement to settle out of court was drawn up.

The ramifications of the settlement are so widespread and questionable, the court was asked to rule on its legality and validity. In October, the courts will rule on whether the settlement can stand. But, the deadine for those affected by the settlement to opt out of it is Sept. 4, 2009.

The Part Where You and I (Authors and other copyright holders) come in:
The settlement affects you whether you like it or not. The following are your options:

Do Nothing: You have opted into the settlement by default. (I just can't grasp that this can possibly be legal.)
Opt In: You are officially part of the agreement.
Opt In and Object to the Settlement: You are ruled by the terms of the settlement but you can file an objection to the settlement that the court must consider when it debates the legality of the settlement in October.
Opt Out: You are not a part of the settlement and are not affected by its terms. You must do this by the deadline of Sept. 4, 2009.

What is the Settlement Anyway?
If you read the lines:
If you own the copyright to work that has been digitized by Google before Jan. 2009, you can register your works with Google, claim a small flat fee in return for their infringement of your copyright, choose to remove the work from their database, include the work but not publicly display it, publicly display but only determined sections. If you choose to display the work, Google will pay you 63% of the money generated through the display.
What you cannot do: You may never sue Google in the future over copyright infringement either singly or as part of another lawsuit.
If you opt out of the settlement, you keep your right to dispute Google's use of your work.

If you read between the lines:
A very useful document to read is called: Google Book Settlement Fact and Fiction (GBSFF)
The Google Settlement site also has a list of FAQ's that are worth reading. (GSFAQ)
a) If you opt out: (Taken from GSFAQ)
"By checking a box on the opt out page, however, the author or publisher can request that the Settlement Administrator ask Google not to digitize (or, if already digitized, not to display any contents from) the books or Inserts identified in the opt out form, Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests..." (GSFAQ)

Note in the paragraph above it states that authors who opt out of the settlement can ask Google not to digitize their work HOWEVER, GOOGLE HAS NO OBLIGATION UNDER THE SETTLEMENT TO COMPLY WITH SUCH REQUEST. What does this mean? To me it says that Google has no obligation to honor copyright law. Indeed, given this settlement, it seems clear that if you are a large enough corporation you can take the law into your own hands.

Some more disturbing quotes: Taken from (GBSFF)
"FACT: The deal would establish Google as the new superpower in the online book marketplace, leaving those authors who opt-out at a substantial commercial disadvantage.

FACT: The deal would usurp the role of Congress and grant special rules for Google – and only Google – to use orphan works that are very different and much more advantageous to Google than the rules contained in the orphan works bills considered last term in Congress. " (GBSFF)

b) If you opt in to the settlement and:
"if Google does not comply with an author’s instructions, she is limited to bringing arbitration over Google’s “best efforts” and will have forfeited the ability to file a copyright infringement lawsuit. " (GBSFF)

c) The settlement seems to only affect works digitized before early 2009. If this is true, what on earth does the following paragraph signify?

"Can I request that my books be removed and still participate in the Settlement? Yes. If you want to participate in the Settlement but also want your Books removed, you must fill out the Claim Form on or before April 5, 2011. Thereafter, Google will honor your request only if a Book has not been digitized as of the date of the request." (GSFAQ)

It seems to mean to me that Google will continue digitizing books into the future. If you don't want Google to make your work public digitally, copyright law is not enough to protect you anymore. You must constantly be updating your Google requests as well, or tough luck. So what does the Jan. 2009 date really mean? And what if you haven't published a book yet and so have not opted out of the settlement. My simplistic interpretation is the following: You will be opted in to this settlement, and it won't be out of choice.

Some Links for Further Reading:

Google Book Settlement Fact and Fiction (GBSFF)

The Google Settlement site FAQ's

The Society for Children's Writers and Illustrators has provided information on the settlement here.

The National Union for Writers has opposed the settlement. You can read the story here.

Large literary agency William Morris has advised their clients to opt out of the settlement. You can read about it here.

The Writer Beware Blogs also has a detailed summary of the settlement.

The Author's Guild has an article on whether or not to opt out here.

Mitali Perkins discusses the settlement and reactions from members of the children's writing and illustrating community at her blog.

To register your books, opt in or opt out, go to the Google Settlement Site.

If you are an author, and/or hold a copyright currently or hope to in the future, I urge you to find out as much as you can about this hugely influential settlement. Should we continue to allow large corporations to take the law into their own hands? What can we do about it?

Love to hear what you think. Thanks for reading. Please note that all quotations have listed sources with links. All words written by me are simply my own opinion from the reading I have done to date. They do not represent the opinion of anyone but myself, and cannot be construed to be terribly informed either. I urge you to read as much as you can, form your own opinion, and make a decision.

Thanks to participants in #kidlitchat on Sept. 1, 2009, for several of these links and discussion. Especially: @mitaliperkins, @williamshultz, @JackFWalker, @EgmontGal. @EKokie, @gregpincus, @inkyelbows, @ktubb, and @JesseMarieKlaus.

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