Ashley Grayson Literary Agency Blog

You may or may not be aware of what is known as the Google Book Settlement.  In short, Google was sued by the Authors Guild and several publishers who alleged that Google’s digitizing of books constituted copyright infringement.  Google and the Plaintiffs reached a proposed Settlement Agreement.This involves you because the Settlement Agreement covers all books and inserts (see definitions of books and inserts in our Guide) that were published before January 5, 2009.We have prepared our own analysis of the proposed Google Settlement Agreement and invite everyone to read it in the accompanying Guide.Please pay attention to the timelines, as the deadline for an action you might want to take is May 5, 2009.

Introduction:  Grumpy Literary Agent’s comments on the Google Settlement

The more we have studied this, the worse the situation and the implications have become. In no case have further details or understanding shown the Google Settlement to be better than we first thought.This is not a minor sub-rights issue that may make you $60 or less on each of your books. It is a major manipulation of the marketplace that effectively diminishes your ability to earn money from your works in significant new markets. In time, these new markets may become the only markets, so this is serious.The circumstances that brought this lawsuit and settlement about are simply about the march of technical capability; neither the circumstances nor the technical issues are good or bad. Like nuclear power in 1947 the technology is neutral and can be used to make bombs or generate power.Unfortunately, however, the settlement agreement as proposed mandates a compromise between technology-enabled business and copyright holders that serves neither.The settlement does several things:

• It skips around Google’s past copyright violations by establishing an agreement that their acts against some works in the past are made legal in the future and apply to everyone. It amounts to saying, “we know you stole the victim’s curtains but instead of prosecuting you for burglary we will accept your offer of $12.95 payment and declare ‘curtain harvesting’ a valid activity with a price set between $1.99 and $29.99, but there will be at least five years before the payment reaches the curtainholders.”
• It offers as representative authors of the class, not one author of adult trade fiction, thereby violating the rules of class actions. This is a legal procedural objection that is being made about the Settlement, but we have other concerns. Basically, no novelist was represented in the class.  More information is available at Scrivner’s Error.
• It establishes a single electronic rights clearing house, the Book Rights Registry (BRR), with an entitlement to a percentage of the electronic income of all works. This amounts to a mandated electronics rights agency that every author is required to pay, but no author can question.  It inserts itself between authors and their agents (and editors and the publisher’s sub-rights managers) and an entire new world of business and taxes all transactions from day one.
• It establishes the Book Rights Registry as the author’s de-facto agent for a range of electronic rights in books currently out of print but still under contract and grants the publisher electronic rights to those books even though the contracts may not contain e-rights language. It deprives the author and agent of the opportunity to exploit those rights as they see fit through negotiation. It pays a share of 50%-35% of the author’s income to publishers who may be out of business or no longer functioning as publishers and the author will have the legal expense of recovering rights. (See page 12 of our Guide)
  • “Consumers will have the ability to purchase online access to many in-copyright books for online reading, highlighting, limited printing, and other potential features. These features will be available for all in-copyright, out-of-print books unless the rightsholder chooses to deactivate these features, as well as for in-copyright, in-print books if the rightsholder chooses to activate these features. The agreement allows for Google and the Book Rights Registry to expand upon this with future additional offerings such as Print-on-Demand, Consumer Subscription, and other uses and services.”  (From The Association of American Publishers Google FAQ.)
• It forms the market model for the value and future value of the electronic rights in your books. The Book Rights Registry gets an entitlement to all works, and can’t be removed from their position so they have no motive to act. Contrast this to a regular literary agent whose job it is to fight for the client.
• While it sets up one agency the authors can’t fire, it also allows any number of additional sellers of display and e-rights to start businesses with the virtual guarantee that they never have to pay an author more than Google did. So Microsoft, Apple, The Open Source Republic of Gimmiestan, Piranah.com, etc. can all start businesses of any type and draw on all authors’ works without any further negotiation. Publishing consultants are already promising a gold rush of new business based on “content” with no recognition of “authors” in the business model.

Grumpy old agent thinks no good can come from this.Yet authors are being rushed to a deadline to acquiesce and not pay attention to what is going on.  In the rest of the booklet we have prepared, you will see what you can do, when you need to decide and what the alternatives are.

Grumpy old agent suggests the following…

1. Empower yourself by reading our booklet and anything else you can to best understand the issues.
2. Immediately and relentlessly in the near future write your congress critters, the Register of Copyrights and the White House, as well as your local newspapers and TV news desks to make your point. This is not part of the requirement to act on the Settlement, but it is important to expose the nature of the settlement.
3. Please pay attention to the deadlines in the Guide and perform the record keeping suggested
4. Every author has individual needs, intent, and financial goals, but no author should act without information. IF you are an author who wishes to have a say in what big companies can do with your works, and who makes money from them, you should seriously consider Opting Out of the Settlement, or Opt In and Object. The latter takes a little more resolve and a willingness to argue a position but hey, that’s why you became a writer, right? Besides, speaking out gets you publicity as the author of “Whatever Title” you want to promote. How to choose the optimal position for yourself and how to act to establish that position is covered in the remainder of this booklet.

Risk and Reward

By doing nothing, you risk losing control of your works if they are out of print and the income they may produce.By Opting Out or Objecting you can pursue a better reward for yourself, your financial dependents and your (eventual) estate. There is no higher risk for Opting Out or Objecting; that is, you can’t end up worse off for having done it.Everything you have to consider and acts to perform to be heard and protect yourself involve reading, filling out some forms, and writing. Nothing an author can’t do exceedingly well. If you need to register some of your own copyrights, you may have to pay some filing fees, but these are one time costs that ensure future income potential. You can’t afford not to.Can I ask my agent to do this?  It is possible for an agent to file on behalf of a client author, but we feel it is important for you to be aware of your titles and their status and make choices about them, and you can do it for a few minutes’ work of going online.Can I expect my Publisher to act for me?  Based on personal interviews, we found no publisher who had a ready document that stated what their action would be for the works whose electronic rights they control. No editor we spoke with was aware that the settlement hands publishers up to 50% of the authors e-rights that they never contracted for. We assume publishers will Opt In, but there are problems.Our estimates are that less than ten percent (10%) of published works have proper electronic rights clauses that authorize publishers to act in this matter. The Google Settlement presumes that if a publisher asserts control of the rights, the deal is done. Individual contracts will likely prevail, but there’s no process to consider author contracts until the BRR is set up and operating. So you have to trust what an unknown organization will do in the future.While publishers have recently started sending out letters asking authors to “give” the electronic rights to them, we, as agents, think this is a bad idea.

Other stuff

Objecting:  In the Guide we say that if you wish to object to the Settlement that you should consult with your own attorney.  You may wish to contact any writers organizations of which you are a member (Mystery Writers, SFWA, etc.) to see if they are planning to take action as an organization to object to the settlement, and you could join in the group’s objection.

References you may want to read

A law professor writes about the Settlement

http://www.acslaw.org/files/Grimmelmann%20Issue%20Brief.pdf

 AGLA Guide to the Google Settlement  a downloadable PDF.

This entry was posted on Thursday, April 23rd, 2009 at 6:45 PM and is filed under Business, Publishing, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.