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.
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* 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.

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