About Me

A blog wherein a literary agent will sometimes discuss his business, sometimes discuss the movies he sees, the tennis he watches, or the world around him. In which he will often wish he could say more, but will be obliged by business necessity and basic politeness and simple civility to hold his tongue. Rankings are done on a scale of one to five Slithy Toads, where a 0 is a complete waste of time, a 2 is a completely innocuous way to spend your time, and a 4 is intended as a geas compelling you to make the time.

Wednesday, April 29, 2009

The Google Settlement

Many of you have maybe read about the Google settlement.  In the "better to beg forgiveness than ask permission" kind of way, Google went to many big college libraries, got their OK to start digitizing their entire collections, and then the publishers and authors go to Google and say maybe you should have spoken to us before you started to do this.  The upshot is that Google has already scanned the books and the settlement would allow Google to do pretty much as it pleases with them with authors having the right to opt out and with Google forking over around 2/3 of the money it gets to publishers and/or authors as the case may be for the money it makes.  Some people have objected to this very strongly.  In order to determine who gets the money, the masters of the Book Registry the settlement establishes may have to look at contracts to see who has electronic rights, so it starts up a new Big Brother with rights to peer into all of our agreements.  The court sets Google up with a monopoly that will last forever.  I'm not as opposed to this as that.  Many countries have things like photocopying funds or lending library money where a library might chip in 3 cents every time a book circulates and then maybe you get $62.89 based on random sampling of library loaning records.  It's money that shows up more easily that way than if every author in Canada has to go after it himself.  Here in the US, we have the courts do what the other branches of government won't with heavy private sector involvement.  It works for me to do it that way.  But my big quibble is that if Google's gone to all this bother to scan my old out of print book from 1972, wouldn't it be nice for them just to give me a copy of it?  So that I don't as an individual author have to butcher my only copy left at considerable personal expense to have for my own book what Google already took the liberty of taking for itself?  The Book Registry big brother might still have to look to see that the rights were reverted to my 1972 book or if I or the publisher have electronic rights under the 1970 contract for my unreverted 1972 book, but at least I have a copy to do with as I please.  This greatly reduces but does not eliminate the objections about the government-sponsored monopoly.  So I did up my letter to suggest this today.  Some powerful estates like Steinbeck and PKDick have banded together and gotten 4 more months from an original May 5 deadline to object or opt out of the settlement, which is a good thing.  If you have a stake in this and want to use some of my language to communicate yourself, you need to send mail to the address below with e-mail copy to the attorneys for Google, the publishers and the authors at the e-mail addy bookclaims@bonizack.com bookclaims@debevoise.com bookclaims@kvn.com.  This as I said is my opinion, and a lot of people hate this settlement vehemently and a lot think it's just fine; the Author's Guild and the Association of American Publisher were the main parties sitting down with Google to hammer this out.

Office of the Clerk

J. Michael McMahon

US District Court for the Southern District of New York

500 Pearl St.

New York, NY  10007

re: Google Book Settlement

Dear Sir:

I am a literary agent with 23 years experience.   The Google Book Settlement will effect virtually all of my clients.

I feel very strongly that the 3.11 Hosted Version for Rightsholders aspect of the Settlement is insufficient, and that Google should also be obliged upon request to provide any Author covered under the Settlement with an electronic version of their work in Word, RTF, PDF or similar common format.

It is very difficult for authors, on an individual basis, to duplicate Google’s efforts in scanning and digitizing these works.  Since Google has already done so with the expectation of benefit to it, which benefit is enshrined in the entirety of the Settlement, these individual authors should not have to duplicate that effort or be entirely dependent on Google’s hosted version in order to gain benefit from the digitization of their work.  This could benefit the authors even in ways that do not compete with Google Book Search.  As an example, it might become easier for authors to market translation rights to their work if they could provide copies electronically for submission and translation instead of having to buy copies (in some instances expensive used copies of older books) which must then be mailed physically at great expense.  If certain fixed costs like typesetting can be reduced, it may make it easier for both publishers and authors to bring more books back into print.

Were this additional requirement added to the Settlement, it would offer clear benefits to the Author Sub-Class and possible benefit to the Publisher Sub-Class without harming Google in a substantial way.  The Settlement would still give court imprimatur to a large, already existing database of digitized work under Google’s control with global terms regarding the use of the database and payment for those usages.  As such, any possible competitor still faces significant barriers of entry in having to go author-by-author in order to compete with what the Settlement would establish.  In undercutting some of the objections that have been made to the Settlement, it would increase acceptance from all stakeholders, and this would ultimately benefit Google and every party to the Settlement.  It would make it seem just a little less like the courts are establishing a Google monopoly now and forever, which is a common thread in many objections I’ve read about to the Settlement.  As such, I urge that 3.11 be broadened to provide Authors with an actual electronic copy of their work and not just a Hosted Version.

cc:  bookclaims@bonizack.com bookclaims@debevoise.com bookclaims@kvn.com

1 comment:

Anonymous said...

Utterly fascinating - a whole new area of concern to worry me!

I am the literary exacutor to my mom - her book output was, sadly, limited to one, but it was a fine piece of work. She left a manuscript that I have been girding my emotional loins to edit and submit in her name. My situation is thus far less monetarily weighty than the fammily of a Steinbeck, just to use your example.

However, my concern has focused on the loosey-goosey way in which the "Registry" accepts claims of inheritance or ownership. I have as a model for comparison the immense and painful and probably eventually expensive efforts I am confronted with in recouping sums of money in the double and triple digits which are clearly due to my parents' estates. I am faced with the possibility of needing to RE-OPEN A 9 YEAR OLD ESTATE! And then, the jurisdiction in which the estate was located "would probably" re-assign me executorship!! This is a direct quote from the officer of the court. The cost of this exercise is likely to eclipse any and all monies due to them (and me, their heir).

Now, if retrieving a few dollars that were long since accrued to my parents takes this level of proof, how can an undertaking which could result in potentially much larger sums of money and prestige depend on such slender affadavits?? I find the assurance that there will be "algorithms" and "fraud detection forensics" and "auditing", and "investigation", all decidedly non-comforting. I loosely quote the counsel for "Rust" (the organization handling the paperwork) as saying that as long as the heirs assert their claims, they should be fine. Based on the painful experience of fraudulent claims of inheritance in the lives of my friends, colleagues, relatives, and cases in the news, I can see holes in the Google procedure wide enough to drive a bookmobile through.

Is anyone else worried about this? I feel that only the modest stature of my mom's book protects me from fraudulent claim on the part of jealous parties. However, I can imagine many times over the last several years (as a new mom, for example) when I would have been oblivious to the unassuming envelope from the Google folks, and could very easily have missed the whole episode entirely. What a horrible thought for my own kids!

If I had relatives of the sort that I see in other families, I would be frantic. I am also wondering if some greedy person is trolling for "unclaimed" books to submit a claim. I am waiting to have a further conversation with legal counsel from Rust, but what I have heard so far is very unsatisfactory.

So -reality check - is this a potential problem??