In the February 2009 Independent Book Publisher Association‘s Independent, intellectual property rights attorney Jonathan Kirsch has an article that does a good job of summing up the proposed Google copyright settlement.
The background in a nutshell: In 2004 Google began work on Google Book Search, a word-searchable database of both copyrighted and public domain books. The problem was Google, claiming this searchable archive fell under the “fair use” doctrine of the U.S. copyright laws, didn’t ask the rights holders for permission. By 2008 seven million books had been scanned and added to the Google Book Search feature.
Naturally this prompted a lawsuit.
Kirsch says that, due to the long-ranging implications to copyright law, most observers expected the dispute would eventually be decided by the U.S. Supreme Court. However, in October of 2008, it was announced that a proposed settlement had been reached.
Here are a few of the basics:
• Rights holders remain in control of their rights, deciding if and how Google can use their material.
• Google will cut the rights holders in for two-thirds of most of the revenue it collects from Google Book Search.
• A new, not-for-profit organization, the Book Rights Registry, will be created with an initial $34 million from Google. The Registry will act as a clearing house, collecting the revenue from Google and disbursing it to the rights holders. It will keep 10 to 20 percent for operating expenses.
• Google will be allowed to make out-of-print books that are still under copyright available for purchase as digital copies unless the rights holder asks that a particular book be excluded.
Is this ok?
I’m not at all sure it is. I think it’s fraught with problems.
This is basically an “opt out” offer from Google and that disturbs me. Rights holders shouldn’t have to go to Google to stop it from using copyrighted material.
Right now Google is focusing on books. But what is the definition of a book? A certain number of pages? Word count? What if a repairman wrote a lengthy report on how to fix Maytag washing machines with one page to a machine and then and published it through a print-on-demand source? Would he have to go to Google to stop it from making all or part of his instructions public? Is it reasonable for us to ask this of each and every author and publisher?
And, if it’s fair for one company to have such an opt-out program, why not many? Are we soon to find we also have to contact Yahoo! if we wish to opt out of a similar program? And what if 1,000 companies decide that they would like to offer a searchable database of, say, a few business books? Are authors and publishers going to be required to contact each of the 1,000 to opt out?
Or are we issuing Google a monopoly? (If so, you may want run to your broker to buy Google stock.)
Who sets the prices? What if you feel your information is more valuable than what Google charges?
Will old editions be replaced when a new updated edition is published or will both be available? Is the rights holder required to keep track of these details?
Are “authors, heirs, and assigns” going to have to prove they are the rights holder to a particular work? If so, how? Who will settle disputes?
How will Google or the Registry find the rights holders to out-of-print works so the company can pay them? If they can’t find the rights holder, who gets the money?
There are dozens of questions similar to the ones above still to be thought of and asked.
Kirsch, a successful author in his own right, thinks most authors and publishers will go along with this. He sums the situration up as “No fundamental principles of copyright law have been changed or eliminated and rights holders will be compensated—if only modestly—for most uses of their work. Above all, they are entitled to remove their work from the Google Book Search program if they elect to do so.”
I don’t know that I agree with him, it feels to me like fundamental rights are being changed. And, who wants to be compensated only modestly for most uses of their work?
Is the public good served to such a degree that the lid on this Pandora’s box should be opened? The deadline for making objections is May 5, 2009.
For more on the subject check out Google’s blog and this Business Week article.
By the way, I really enjoyed The Harlot by the Side of the Road, Kirsch’s meticulously researched, juicy retelling of some of the Bible’s most violent and sexually explicit stories.