Author’s Guild To Amazon, “Your Hypocrisy Is Breathtaking”
In its brief, Amazon says the agreement will enable Google to gouge consumers and stifle competition. The Author’s Guild, one of the parties in a settlement with Google over books rights, is calling Amazon’s brief opposing the agreement a case of “breathtaking hypocrisy.”
Tags: Common Sense
kirsten saell wrote,
It may be hypocritical, but I think I like the idea of even a hypocritical giant like Amazon objecting to this deal. And it is a business deal as much as it is a settlement.
The fact that Google will pay the Book Registry, and the Registry will pay rightsholders what’s left over after administration costs? Isn’t that like paying royalties on net? And who’s going to run the registry? The Authors’ Guild? If so, isn’t that a huge conflict of interest?
The more I read about this settlement, the more it stinks to me. When it comes to selling rights, authors should have as much say as “sellers” when negotiating terms. The way Google wants to do it is have a boilerplate in place that is non-negotiable, applied to everyone, and that removes their right to sue over future bad behavior. Authors who opt in will have to trust that Google will deal fairly with them because they have no legal prcedure in place to hold Google accountable.
When was the last time you trusted a large corporation to, out of nothing but the goodness of their hearts, deal fairly with the little guy?
Link | September 4th, 2009 at 10:31 am
TeddyPig wrote,
I don’t know. I have no horse in this race. I think there are two sides to this story.
I can see the need for Google, who simply wants to be the biggest electronic library ever created, to find some way to standardize legal agreements and cut to the chase without having to deal with so many problems. That is in their best interest as a company.
If AG is selling out the authors in this deal then it is not just Google who is the only bad apple here. Google is not that nefarious to me they give me free email and a great place to stash my ebook collection.
Link | September 4th, 2009 at 11:24 am
kirsten saell wrote,
The thing is, the onus was on Authors’ Guild to contact all class members and inform them of the suit, and give them the option of opting in. That’s how class action suits work. The very fact that they default-opted everyone, alive or dead, into the settlement is a glaring violation of standard procedure–especially since opting in gives a rightsholder a one-time payout of $10-60 (which they still have to pursue, thank you) rather than the $750-150 000 they’d get per infringement if it was proven in court.
But the payout of damages is only half of the “settlement”. The rest of it is a commercial transaction pertaining to Google’s future use of copyrighted work that’s no different from a contract between an author and a publisher, or an agreement between a publisher and a bookseller. When you enter into a commercial transaction you generally have some control over the terms of the deal, and a way to penalize the other party if they don’t act according to those terms (i.e., if they steal from you, or rent something from you and then rent or sell it to someone else). But by opting into the settlement you waive your right to sue Google.
They may be willing to pay 63% of revenues generated by your title, but you have to claim that revenue–so Google’s revenue stream is assured while authors and publishers have to go hunting first to see if their titles are up, and then chase Google down for cash. And that cash gets collected by the Book Registry, and the BR deducts their operating and admin costs from it and forwards the rest to rightsholders. So authors will get a percentage of a percentage of 63% of what Google makes (sounds a lot like royalties on net, doesn’t it?)–yet no control over how Google chooses to monetize their work (marketing, ad revenue, share of membership fees).
And if the author wants to publish their OOP/rights-reverted work as ebooks (which would get them a lot more money), or the publisher decides to epublish an author’s backlist, they have to rely on Google’s good will to take those books down–they have no way to force them to do it because they’ve waived their right to sue.
This settlement is really two things–a settlement of copyright infringement damages, and a business deal between Authors’ Guild (representing every author, alive or dead, who’s ever written or will write anything), and Google–that makes Google a default rightsholder/publisher/legalized pirate and lets Google dictate all the terms. There’s a whole lot of room for exploitation and abuse in there, because there’s no avenue for holding Google accountable if they choose not to honor the agreement.
If the settlement was split into two separate cases–the settlement of claims for past violations, and a far-reaching partnership with rightsholders–in other words, if you could opt into the payout of damages without opting into the rest of it, I wouldn’t be freaking to the degree I am. But there’s something really wonky about a class-action suit for (a minuscule fraction of possible) damages morphing into a business deal of epic proportions and questionable legality (antitrust, anyone?), one which authors must opt out of or be considered in.
When you consider how panicky the AG got over text to speech/audio rights–to the degree that they were warning authors to not even pursue digital rights!–but now they’re recommending authors get in the digital car with the creepy old guy who’s offering candy, it makes me wonder how many blowjobs the Authors’ Guild has gotten out of this deal…
Link | September 4th, 2009 at 2:20 pm
TeddyPig wrote,
As I said I have no dog in this fight.
Seems to me the question should be “Can AG claim to represent everyone?” If not then this whole thing falls apart in my personal opinion.
If they have a legal right to do just that due to the legalities around a class action suit then it does sound bad but mostly because AG accepted the deal not because Google made one that favored Google. Any company would look out for themselves first.
Link | September 4th, 2009 at 3:18 pm
kirsten saell wrote,
Agreed.
And I’m not even saying AG is out to screw authors. But they are woefully ill-informed about the digital portion of the industry, and have up til now seemed hell-bent on stifling it.
Take the TTS/audio rights thing. They advised authors to ignore or not exploit their digital rights based partly on the fact that at some date in the distant future, TTS technology might be equal to Morgan Freeman on a good acting day and could be considered a performance. Considering contracts negotiated between authors and publishers have give and take and expiry dates, or if they’re for life of copyright, there’s always a point where the author can request their rights back, I don’t get what the big effing deal was.
The day TTS looks like it might approach the acting quality of Morgan Freeman, authors could, if they wanted, renegotiate their contracts to exclude digital rights, or to bundle digital and audio together, or request all their rights be reverted.
But AG was still completely freaked about the “what-if”s that might happen at some point in the future. And because they don’t have clue one about digital, they didn’t say to authors, “Dudes, make sure you’re getting at least 30% of list price on digital because you’ll lose a few audio sales out of the deal.” Nope, they just said “don’t exploit digital rights because the future is scary.”
Now, had this deal with Google been negotiated by Angela James or Crissy Brashear or Treva Harte or someone–ANYONE–who has some freaking clue about how digital rights can and should be managed in order to benefit authors and publishers, I might not be so opposed to it. But this is the Author’s Guild. As far as they’re concerned, digital books and digital rights aren’t worth pursuing–despite the fact they’re the only part of the market that’s actually, you know, GROWING. It may well be that because of the way NY has castrated their own digital books through pricing and DRM and format issues, AG doesn’t think digital books are ever going to make authors any money so why not take Google up on its pathetic offer to monetize them?
Except that digital books the way digital publishers handle them DO make money for authors. Unless Google undermines their profitability. This deal could devalue digital books as individual pieces of intellectual property. Authors could end up making a tiny fraction through Google than they would through their publishers or on their own–and the very fact that their books are available by subscription on Google will decrease actual sales. It’s like a library, but it’s not. Not when hundreds or thousands or tens of thousands of people can read the same book at the same time for a fraction of what they’d have had to pay to buy it.
This deal allows Google to put up any title it wants, and the onus is on the rightsholder to ask them to take it down. In other words, the default setting is “on” unless it’s requested to be turned “off”. Opting in means it’s just one more site I have to hunt around on to ensure my copyrights aren’t being infringed.
It also puts the onus on rightsholders to check to see if their titles are there, and in what form, and to pursue Google for compensation. This puts the whole concept of business transactions on its head. The retailer (or subscription service) asks to use your work, you agree and set a price, you haggle a bit, and they provide an accounting of things along with the money without you having to chase it down. With normal publishing, second party retailers send sales figures to publishers, the publishers figure out the royalties due based on percentage of list price and they pay the author–on a schedule without fucking being asked. Without being hounded. And without having to be checked on. If any parties suspect they’re getting the shaft, they demand an audit or sue.
In this case, how is an author even to find out how much money has been earned by Google in relation to their title? Why must an author claim the book before Google will pay? The copyright page is right there in the body of the text! The onus should be on Google to pay the publisher for every title used (not just those that are claimed) based on usage, to provide a solid accounting of what was earned, and to be open to audit at the request of rightsholders. And rightholders should have the freaking right to sue.
Link | September 4th, 2009 at 3:55 pm
kirsten saell wrote,
Oh, and to snag a quote from a fellow Romance Diva, Carly:
“One more thing: If you choose to opt out, there’s a box where you can request Google to contact you about using your books – the old fashioned commercial method where they have to deal with the Publisher/author before making money off your work. They want everyone to opt in, but if you don’t, they aren’t going to refuse to digitize books they want. And of course, you will then make royalties on those sales.”
That’s the way it should be done. Imagine if a publisher made you sign a contract where the terms were fixed in perpetuity for every title you ever sold to them? Holy crap would that be a red flag. But that’s what the Google Book deal does. It removes the option for title by title negotiation of terms and puts the onus on the rightsholder to police Google’s use of its property.
Link | September 4th, 2009 at 4:11 pm
TeddyPig wrote,
Well my point was not “if” AG was qualified because that’s just an opinion but “if” AG could do what they are doing and legally represent everyone in this matter.
As far as why Google is doing it this seems clear to me. They want to clean up the questions concerning orphaned works under one agreement. After that I don’t think they will really concern themselves with tracking down anyone opting out.
Link | September 4th, 2009 at 4:25 pm
kirsten saell wrote,
I think as it applies to orphaned works, the settlement is fairly sound–even the opt out or you’re in part, since the works are orphaned and therefore it’s to be expected those rightsholders would not be present or interested in opting in.
But if that were their only aim, both AG and Google should have kept the two aspects of the settlement separate. The options should have been “If your books are in print/still under contract and/or you have works that have reverted but you are interested in monetizing them on your own or with a publisher, please opt into the damages settlement to receive compensation for the alleged infringement. Then consider whether to opt in or out of the second, commercial transaction agreement–if you opt in, here’s how it will work, and if you opt out you can contact Google about having us display or not display your copyrighted material in a manner that you approve.”
It stinks that in order to collect damages on past infringements, you have to opt into the whole shebang.
Link | September 4th, 2009 at 8:58 pm
TeddyPig wrote,
It stinks that in order to collect damages on past infringements, you have to opt into the whole shebang.
Maybe not for Google. Seems to me each individual would then have to prove how much damage$ are involved and would a lawyer take their individual claim.
Link | September 5th, 2009 at 3:43 am
kirsten saell wrote,
Oh, it would be a logistical nightmare for Google if people could still get their damages while opting out of the agreement. There are all kinds of eyes on them now, watching what they do and I’m pretty sure there’s an antitrust investigation going.
This agreement makes life very easy for Google. They have a list of everyone who’s opted out, and every other book by every other author is fair game for them to scan and post (snippets, long passages, the whole shebang, whatever) and it’s up to the author to check what’s up there and ask them to change it or take it down.
It eliminates the need for Google to negotiate anything or ask permission–which is the way things currently are supposed to be done. It frees them from worrying about lawsuits if they don’t abide by authors’ wishes. And if authors need to subscribe in order to have access to check if their books are there and in what form, Google makes a nice profit there as well…
Tis is the first time I’ve ever heard of that something like this has been attempted as part of a damages settlement–the defendant pays damages to the class member but only if the class member is willing to enter into a commercial transaction agreement with them that gives them the right to continue doing what got them sued in the first place. And the class member has to waive their right to sue even if the defendant doesn’t abide by the terms of the commercial agreement. The class members must claim their books by a deadline, or they will get neither the one-time payout nor a portion of any future revenue Google earns from their books. The assumption is that Google (whose only role in the revenue stream is to basically pirate the work–because that’s what it’s called when anyone else does it) will make money off your book–the only question in the agreement is whether (or not) you will get any of that. It’s weird, it’s backward, and I don’t know how it will stand up in court.
I mean, hey, I could be completely misinterpreting this whole thing–it is 375 pages of legalese. If I recall correctly, Google will be paying $45 million in damages. The lawyers alone are making something like $30 million. And for what it’s worth, an editor we both know and love to little itty bitty bits called the agreement “screwy” and expressed some umbrage that the Authors’ Guild could presume to speak for not just its membership, but authors everywhere, alive or dead.
Everyone tells authors not to enter into a contract you don’t understand. I opted out because I don’t understand half of this, and what I do understand gives me hives.
Link | September 5th, 2009 at 11:35 am
TeddyPig wrote,
This agreement makes life very easy for Google. They have a list of everyone who’s opted out, and every other book by every other author is fair game for them to scan and post (snippets, long passages, the whole shebang, whatever) and it’s up to the author to check what’s up there and ask them to change it or take it down.
Well, I think that was the whole point of this deal to make things easier for Google to go about doing what it originally intended. AG sued for damages and Google said well then if you are in charge let’s take this to the next level. If authors were allowing AG to represent them then they got more than they expected and that’s the problem then not that Google is involved but they allowed AG to speak for them in the first place.
Link | September 6th, 2009 at 4:20 am
kirsten saell wrote,
Oh yes. And if AG were truly informed on “new” technologies like ebooks, there would be no ambiguity in that agreement as to whether ebooks and POD books that are currently for sale by publishers constitute “in print”, “commercially available” books. Because that ambiguity makes it very easy for Google to publish competing versions of books–in the very same formats, no less–from small presses and epubs.
Here’s what I think SHOULD have happened (and I have no idea why AG didn’t push for something like this):
They should have basically done two separate agreements–one for the settlement of damages, that would require authors to opt in (because they have to do that anyway–they have to claim their books to get any money).
Then they should have done another “opt out” style agreement for Google’s future use of orphan works, where authors who have opted into the settlement of damages could then opt out of the second agreement (because their works are obviously not orphaned). Set a deadline for that, bombard the media with info on the agreement and how authors wishing to monetize (or continue to monetize) their work should opt out of the “orphan works” agreement, with instructions on how to contact Google if they want their books to be included in revenue-generating activity at Google Books. Have language in the orphan works agreement so that those authors who’ve been in a coma for ten years or hiking in the Himalayas or what have you can’t sue for infringement, but can claim and monetize or remove their books from the agreement when they wake up or come home.
Keep the orphan works agreement for orphan works. Keep the damages settlement for those who want to collect damages–by definition, authors whose works are NOT orphaned. Keep it simple and separate, stupid.
Link | September 6th, 2009 at 10:46 am