Monthly Archives: August 2009

Should I Opt Out? Should I Fear Google? What about the Money? Answers about the Google Book Settlement

There’s not much time left for authors to opt out. What should I do?

Short answer: nothing.

Longer answer: Opting out of the settlement is for authors who want to preserve their right to sue Google themselves. We don’t think there are any such authors.

Then, do I need to sign up somewhere?

You don’t have to—your rights are fully protected either way. But yes, we do recommend that you claim your books. It’s easy to do that on line, at www.googlebooksettlement.com. Then when money starts coming in that belongs to you, the Book Rights Registry will know where to find you.

What money?

If Google scanned your book from any library, you may be entitled to a small payment just for that: at least $60 per book, and up to $300, depending on how many people claim their books. (The deadline is next January 5 and, again, you sign up at www.googlebooksettlement.com.)

There will also be money from advertising. When Google displays ads next to any page from a book of yours, you are entitled to a share of the money.

And then there will be money from institutional licenses and from sales to consumers who find books through Google search and want to read more than a small sample.

In addition, there will be per-page printing fees from users of free access terminals in public and academic libraries throughout the country.

All this applies to millions of books that have been out of print. Books still in print (published up to January 5th of this year) can be included if that’s what both the author and publisher want.

But what if I don’t want Google displaying my book at all?

You are fully protected. The settlement gives rights holders full control over how their books appear in the program. You can tell Google to display nothing at all. You can display only snippets. You can let users see a fixed percentage of the book. You can let users buy the ability to read the whole book.

And you can change your mind at any time.

Assuming I do want to let readers buy access to my book, who decides the price?

You do. The rights holder.

Google has developed an algorithm to help find optimal prices for different books. Those prices will be used when rights holders don’t want to decide on their own, or when rights holders can’t be found.

But the rights holder can always take over and specify a price.

Am I the rights holder — or is the publisher — if my book is out of print?

When your book goes out of print, rights should revert to you, but generally you have to take action to make sure that happens: send a written request to your publisher. This settlement makes it more important than ever that authors do that.

If rights haven’t reverted, you and your publisher share control (and share the revenue). But you always retain veto power.

What is Google’s role in the new Book Rights Registry?

None. As part of the settlement, Google has to put up the start-up money to get the Registry up and running. (We expect them also to help with some tech support.) But the Registry will be controlled by a board of authors’ and publishers’ representatives; Google does not get a voice.

What about the “orphan works”? Doesn’t Google get a monopoly over those?

There is a big difference between “out-of-print” works and “orphan” works. It is inevitable that some rightsholders will not claim their out-of-print books, but we believe that over time most will. Unlike true orphan works — where the rightsholder is unfindable, such as photographs published without attribution — books have lots of identifying information that the Registry can and will use to find their rightsholders.

In this way the settlement will rescue these books from the purgatory they are in now. And as that happens — as money begins to be collected on behalf of rights holders — we’re quite sure that the rights holders will come forward. Our own experience with the Authors Registry has shown tremendous success in finding rights holders of out-of-print books. We expect the Book Rights Registry to do even better, and to create what the industry has needed for so long, a comprehensive database of copyright owners.

So we think the settlement, especially the establishment of the Book Rights Registry, is a big part of the solution to the orphan works problem. (Here’s more on the subject from Roy Blount Jr.)

Can Google “repurpose” my text to make something new? Can they add hyperlinks to other sites?

No. The settlement includes strong protections for “Integrity of the Text.” The words of a book may not be altered in any way. Google cannot add hyperlinks (except to help the reader navigate within the book: for example, from the table of contents to the referenced page).

Should I be worried about my book being marred by intrusive advertising?

There are strict limits on what Google may and may not do in the way of advertising — for example, no pop-ups or pop-unders, and nothing that blocks any portion of a book at any time. Furthermore, the rights holder always has the right to bar advertising from any of his or her books.

What if Google ever decided to make a book disappear — under pressure from a foreign government, or to block porn, or for any other reason?

If that happened, Google would be required immediately to notify the Registry and turn over a complete digital version of the book. The Registry, and libraries, may then make it available (assuming the rights holder agrees).

William Morris’s Google Memo Off Target

Text of e-mail sent to members, August 10, 2009.  Memo to Agents (and Authors)

William Morris’s recent memo to clients about the Google book settlement contains several errors that are likely to sow some confusion.  We’d like to clear that up, so we’ll host a free conference call this Thursday at 3 p.m. Eastern time, open to all agents and authors. Sign up here.

We don’t want to wait until Thursday to straighten things out, however, so here’s the deal in one sentence: unless you want to sue Google, there’s no good reason to opt out of the settlement.  If you want to allow your book to be searchable in Google’s database, and you want to be fairly compensated for Google’s use of your work, and you want to retain complete control over whether, and how, your book is displayed or sold to users, you should remain in the settlement.

William Morris’s principal mistake is that it appears to think that the uses that the settlement permits Google to make are interminable.  This leads the agency to draw a series of erroneous conclusions:  that authors can’t negotiate higher rates for works covered by the settlement, that the agency won’t be able to bundle all of an author’s books (whether or not they’re covered by the settlement) into a single negotiation with Google, and that its clients would be better off with a settlement of more limited duration.  Most fundamentally, it leads the agency to conclude that authors are limited in their dealings with Google to the settlement’s terms, unless the court changes those terms.  It’s wrong, on all counts.

Staying in the settlement does not diminish the agency’s — or anyone’s — negotiating power.*  This is because all rights granted Google under the settlement are terminable at will by the rightsholder.  Licenses that are terminable at will give the rightsholder far more power than a license of defined duration.  In book publishing (as in life) all negotiating power comes from the power to say “no.”  The settlement fully preserves that power for rightsholders, from day one.  

By staying in the settlement:

•  You aren’t limited to the (quite favorable) royalty rate we’ve negotiated.
•  You have the right to veto your publisher’s decision to make your in-print book available in any way through the settlement.
•  You have the right to block all displays of your out-of-print books, even if rights haven’t reverted to you, even if your publisher wants to display the books.
•  You have the right to have your work in Google’s searchable database and display only snippets to users, blocking all other uses by Google.
•  You have the right to change your mind (allow books you’d previously blocked to be displayed; block books you’d previously allowed to be displayed) at any time.
•  This is just the start.  For a more complete list of benefits, read this.

The settlement offers a 63/37 split** in your favor.  Want to negotiate a different deal with Google?  Turn off all display uses of your works and go for it.  At any time.  

But first things first.  This settlement sets up a vast new marketplace for out-of-print works.  Stay in the settlement to take advantage of that (to stay in the settlement, you need do nothing).  There’s plenty of time to exercise all of your rights and benefits under the settlement — including the right to say “no” to any and all uses — after the settlement’s approved.

Note to literary agencies:  There’s no need to go it alone — please call if you have questions about the settlement.  We’ve discussed the settlement at length with hundreds of agents, and we’re happy to discuss it with you.

Note to William Morris clients:  William Morris has the reputation of working hard for its clients; its memo on the settlement is no doubt a rare misfire for the agency.  We don’t hold it against them, and we urge you to not do so either.  If you’ve already opted out and would like to undo it, please contact us.
________________________

* One caveat: those who remain in the settlement do give up their right to sue Google.  However, William Morris believes Google’s scanning is a fair use (an unusual position for those concerned with authors’ rights, and a decidedly outlier position for those in the copyright bar).  What is more confusing is that William Morris encourages authors to opt out of the settlement while at the same time encouraging them to grant Google the right to use digital copies of their works for search purposes.  If an author opts out, however, Google may well remove his or her books from the database in order to avoid an infringement suit, and the author’s books would not benefit from Google search.  In fact, the only way to ensure that your book will not be completely removed from the database, and thus benefit from Google search, is not to opt-out.  Then will you be able to turn off all display uses except the free, search-based uses (snippets and previews) that will drive traffic to bookstores.

** It’s a good deal.  For comparison:  Amazon buys e-books at a 50% discount from publishers.  If you’re a self-published author, the split is 35/65 — in Amazon’s favor.  Newspapers face a 30/70 split — again in Amazon’s favor — for electronic distribution of their content.

Feel free to forward and post this e-mail.

For further information, contact the Authors Guild: staff@authorsguild.org; 212-563-5904.