Authors lobby U.S. court to reject Google deal

More than 250 Canadian writers sign petition protesting illegal digitization of books

John Barber

Information giant Google is doing evil to their property, a growing number of Canadian writers claim in a petition urging a New York court to reject a controversial deal giving the company free rein to digitize the world’s books.

Acting independently of the Writers’ Union of Canada, more than 250 writers from across the country have so far signed the petition, which includes a call for the federal government to speak on behalf of Canadians potentially bound unwillingly by the terms of a legal settlement achieved in a U.S. court.

Authors Wayson Choy, Heather Robertson, Ann Ireland, Susan Crean, Keith Maillard, Silver Donald Cameron, Ron Smith, Graeme Gibson, Anne Cameron and Marilyn Bowering are among those who joined the call to reject what the petition describes as “an assault on international copyright law” staged for the benefit of a “predatory corporation.”

The Canadians are the latest in a growing number of non-U.S. groups, individuals and national governments to demand exemption from the all-embracing deal, which would allow Google to distribute digital books according to terms negotiated with New York publishers and the U.S. Authors’ Guild.

“The governments of France and Germany protested that illegal digitization of books amounted to theft of a cultural heritage,” the petition states. “We agree, and believe that Canada’s heritage of cultural nationalism should be applied to the Google settlement. All of continental Europe is now exempt, and so should Canada be.”

The group is hoping the petition will become the basis of an official intervention in the upcoming hearing, which is scheduled to take place in New York on Feb. 18. Although Google satisfied some objectors this fall by offering improvements to the original proposed settlement, many others remain adamantly opposed and have filed briefs with the court.

They include the U.S. National Writers Union, which is leading opposition to the settlement, and such acclaimed authors as Ursula K. LeGuin, who resigned from the Authors Guild last week, claiming its consent to the deal “sold us down the river.”

Petition organizer and playwright David Bolt, literary executor of late playwright Carol Bolt, said the Canadian writers decided to speak out in part because the Writers’ Union of Canada declined to take an official position on the settlement.

“They tried to work it from the inside,” he said, adding that the WUC achieved some success in achieving better terms for Canadian writers in the revised settlement. “But we thought we should go further and try to get the settlement rejected altogether.”

WUC chair Erna Paris, author of The Sun Climbs Slow: Justice in the Age of Imperial America, said the group has maintained its objections to two aspects of the settlement without taking a position on whether or not it should be rejected by the court.

One issue concerns the fate of so-called “orphan works” with no known rights holders, according to Paris. Another is permission the deal gives for libraries to gain access to digital books for free, something they are currently required to pay for in Canada.

“That really sticks in our craw because we think it could have copyright implications in Canada,” Paris said.

On the other hand, she added, writers who opt out of the settlement will forego revenue from digital sales and potentially lose control of their work. “If anybody who opts out wants to complain or sue, they’re going to have to do it independently,” she said, “and that will be almost impossible.”

The court-imposed deadline for writers to decide whether or not to join the settlement is Jan. 28.

Some writers are concerned that signing our letter of protest against the Google Book Settlement will, in effect, opt them out of the Settlement.

Let us clarify:

Whether a copyright holder has stayed in or opted out is of absolutely no relevance to signing this petition.  Opted in or opted out, any writer can sign this petition.  The petition is most definitely not a group opt-out (which would not be allowed anyway).
The cover letter and petition themselves do not claim to be a procedure for opting out.
On a subtler note, some people may wish to stay in the settlement — in order to get whatever advantages it may provide if it is approved — while at the same time hoping that the judge rejects it.
People whose want to opt out to visit the National Writers Union anti-Google site for how-to instructions.  The NWU site link is provided in the cover letter to the petition.  Here it is again.

http://www.nwubook.org/NWU-GBS2-FAQ.html

We hope this addresses your concern.

Sarah Sheard

David Bolt

Canadian Writers’ Petition:

Fellow authors and copyright holders:

Many of you are already familiar with the Google Book Settlement, and its dangers for Canadian copyrights. For those of you who are not, we suggest you skim through a highly readable statement by the U.S. National Writers Union, which flatly opposes it.   http://www.nwubook.org/NWU-GBS2-FAQ.html

We are a group of concerned Canadian authors who would like to protest this settlement in as effective a way as possible.  Accordingly, we have written a protest letter, which we hope will gather names, including yours.  Then we intend to release the letter to the media, to politicians, and anywhere else that might conceivably have an effect.

A court in New York City will soon be deciding whether to approve or reject this settlement.  We hope the judge rejects it. For those of you who have considered opting out, the deadline is January 28.  This is also the deadline for any submissions to the court.

We have very little time left to influence the debate.  If you would like to respond, please do so as quickly as you are able.

To add your name to this petition, please email dvbolt@aol.com (Your email will NOT appear on the petition.)

LETTER IN PROTEST OF THE GOOGLE BOOK SETTLEMENT

The following Canadian authors and copyright holders wish to protest the Google Book Settlement.  Even in its revised form, it is an assault on international copyright law and has distorted class action law for the benefit of a predatory corporation.

New Zealand, Ireland, South Africa and India – all countries with English-language presses similar to Canada’s — have been exempted from the settlement because they protested vigorously against it..  We wish to protest just as loudly.  The Governments of France and Germany protested that illegal digitization of books amounted to theft of a cultural heritage.  We agree, and believe that Canada’s heritage of Cultural nationalism should be applied to the Google settlement.  All of continental Europe is now exempt, and so should Canada be.

We believe that Canadian Copyrights should be subject to Canadian courts, as well as to the Berne Convention.  We believe that Canadians should not lose control over their works because they fail to sign up in a registry in another country; and, further, that the opt-out (rather than the time-honoured opt-in) clause serves to co-opt many copyright holders who do not have the the time or inclination to study this complicated settlement.   Also, the deadline for opting out insults common sense and benefits only Google.

The director of the US Copyright Office has said “no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time.”  She has called it “an end-run around copyright law”.  We agree.

The US Department of Justice sees no reason why Google should not negotiate with authors and publishers individually, just like anyone else who wants to purchase copyright licences.  We agree.

The Google Settlement was negotiated by the Authors Guild of the U.S.  But other U.S. groups — the National Writers Union, the American Society of  Journalists and Authors, the Science Fiction and Fantasy Writers — are all unequivocally opposed to it.  We do not accept that the Authors Guild speaks for us and join the above organizations in demanding that the settlement be rejected.

If  the settlement is not rejected, we see no reason to trust in the future.  The Google Corporation has behaved in an illegal and predatory fashion in the past and will likely go on behaving in this way.

We join with the writers’ and publishers’ groups, as well as with the foreign law courts and governments, who reject the settlement in its entirety.

Gillian Spraggs is a British historian and poet offering a most lucid ongoing assessment of the Google Settlement. She is among the precious few articulate and informed web commentators on this subject. Do visit her site and help form a link to our UK sistren and brethren writers opposing Google.

Her new paper (title below)  is online at: www.gillianspraggs.com/gbs/GBS_survival_aid.html

Here’s an excerpt from Gillian Spragg’s paper:

The Google Book Settlement: a survival aid for UK authors
Dec. 11th, 2009

I opted out in August. Having taken a good look at the agreement in its amended form, I have no intention of opting in again.

But every author’s situation and outlook is different (something to which the Google Book Settlement agreement, with its one-size-fits-all provisions, pays not the least attention).

This ‘survival aid’ has been written not specifically to persuade authors to opt out but to help provide the information they will need in assessing the scope and detail of the settlement and weighing up their options. Which still remain open: for a short period only. The deadline for opting out is 28 January.

This paper is offered in good faith, after a lot of thought and study, but with no guarantee that it gets everything absolutely right. The settlement agreement is a complex and difficult document (some say, perhaps jokingly, that even the lawyers who drafted it don’t entirely understand it). My summary does, however, contain references to the relevant sections and subsections; if you are an author (or an agent), it should help you find your way around. It is not a substitute for reading the agreement itself, which is probably best studied at the Public Index, where the hyperlinks make it easier to navigate.

Although parts of it relate particularly to authors published in the UK, most of it relates just as much to authors published in Canada, Australia and the US.

If you have arrived here out of the blue: I am not a lawyer. Any author with valuable literary properties to safeguard would be sensible to consult one.

Why am I doing this? Because I have been disturbed by the inadequacy, and sometimes the demonstrable inaccuracy, of material that I have seen that has been circulated to or directed at authors. Because, in my experience, it has not been made at all easy for authors to acquire the full information they need to

a) weigh up their options

b) put their decisions properly into practice.

If you are thinking of opting out, you will find information on how to do this here.

If you have been planning to stay in and claim your books, there is quite a lot of information in this ‘survival aid’ that it is likely you will find worth reading.

If you have claimed your books and now wish you had opted out: you can still change your mind and opt out, so long as you take action before 28 January.

New Zealand is one of the few English-speaking countries that spoke up boldly against Google’s copyright grab of their authors’ work. New Zealand’s protest succeeded in getting its copyrighted work exempted from Google’s revised Settlement.
If feisty little New Zealand can accomplish this, why can’t Canada?
Here’s a column from the NZH which clearly explains why “not saying No is not the same as saying Yes”.
Enjoy.

Last week Web Walk columnist Chris Barton criticised moves by Rupert Murdoch’s News Corporation to take on Google over content aggregation. Here, Warren Lee, responds

Something isn’t right when journalists, who rely on copyright law to protect their work and feed their families, hit out at “the contortion of copyright laws to line the pockets of corporate rights holders at the expense of the public and the artists who create the work”.

On one level there is nothing difficult about copyright laws.

If you are a carpenter and make tables for a living, people aren’t allowed to just take the tables. They have to pay for them. If they don’t, it’s called theft.

If you create a written work for a living, like a journalist, then people have to pay for that work too.

But because you can’t steal a sentence, a movie, or a picture the same way you can steal a table, the law that protects the film-makers, photographers, authors and journalists is called copyright.

Because of that copyright, the law protects the livelihoods of those people and makes it possible for them to go on making movies, gathering news, writing songs or whatever it is they do.

It’s true that “corporates”, “media barons” and even “Murdoch” also gain the benefit of those laws, but so what?

You can’t steal the furniture of the rich either.

There are, however, two things that complicate the copyright picture. The first is that in a digital age, enforcing copyright is much harder than it was in the days of the photocopier.

The difficulty with this enforcement leads some to conclude that the idea of copyright has somehow outlived its usefulness and, in the digital world at least, it needs to be abandoned.

Others say the only way to enforce it in that environment is to reverse or eliminate the traditional onus of proof and that under such a regime, only the guilty would have any reason to fear.

They are both wrong.

The fact that it is difficult to enforce copyright law, doesn’t make it okay to infringe basic rights. But it also doesn’t make it okay to ignore it.

Much as the internet has made our privacy much harder to protect, it has done the same with copyright. But we shouldn’t be giving up on either any time soon.

The second complication is “fair use” And this is where Google, and “the Google debate” comes in.

The three things that bother newspaper publishers the most are:

* Google is clearly benefiting from indexing newspaper content it does nothing to create. Maybe it’s true that the publishers also benefit, but it seems pretty clear that they don’t benefit as much.

* Further, and critically, the publishers never said yes to Google indexing that content. Ever. As Ariana Huffington and countless others have said, they didn’t say no either, but that’s hardly the point. Not saying no is not the same as saying yes.

* But perhaps most importantly, while it is, in theory, open to publishers to negotiate a new deal with Google, the legal deck is stacked against them doing so. Any negotiation needs leverage or bargaining power. But the publishers have little of either with Google.

Google has a massive, global, virtual monopoly on the search market. And, perhaps, all credit to them. But they have created a business the scale of which the media has never seen before and which faces little or no competition.

Publishers, on the other hand, face increasing competition everywhere they turn. Even the large ones like News Corp are unlikely to be the only provider of news and information in their market.

So when a publisher says to Google, “I want a new deal where I get to share in your bounty or else,” and Google says “or else what?” and the publisher says, “ummm, errrr, or else we will not allow you to index our content”, Google assumes they are bluffing and says: “No deal.”

Google has, to date at least, been right in that assumption every time. To solve this problem, and to allow negotiation to take place on an even playing field, the publishers would need to band together.

But here’s the thing. It’s difficult to do so under the competition laws of the various countries in which they operate, because that would be collusion.

So Google remains confident no one will individually take them on. And laws in various countries stop them from doing the only thing that could even the playing field, which is to let them negotiate collectively.

That certainly doesn’t seem fair especially when we remember that they never said yes to being in this situation. So in a way, Google collectively opted them in and gained vital critical mass in doing so, but they aren’t allowed to collectively opt out.

So how about this for a way to create a choice?

Microsoft or Yahoo announce a “new deal” with one global publisher where they are paid for links in exchange for that publisher de-indexing from Google. They also announce that the same deal is open to all publishers.

No one would collude, but everyone would end up with a choice.

Let’s be clear. It is not a foregone conclusion that anyone would take such a deal. Maybe no one would.

If I had to choose between de-indexing Google in exchange for a paid deal with another search provider with a fraction of the market share, I don’t know what I would choose.

But I, and I suspect the majority of publishers on the planet, would sure like to have a choice.

* Warren Lee is chief executive officer of APN Online, which publishes the nzherald.co.nz website and over 30 other newspaper and magazine sites in Australia and New Zealand. The views expressed in this article are those of Warren Lee personally and not necessarily those of APN.

David Bolt is a distinguished Canadian actor and playwright, active for over 40 years in Canadian theatre. He has been closely following the Google Book Settlement and its possible implications for Canadian creators. I’ve invited him to contribute his analysis of the international response to Google’s case, now before the U.S. court.

Bolt is one of a tiny handful of Canadian writers speaking up publicly against the Google Settlement. He was interviewed about Google in this week’s issue of ‘Tandem’, (Corriere Canadese’s English-language supplement.)

A Canadian’s Perspective

Sarah — Since Canadian papers are not covering the Frankfurt Book Fair, I thought your blog readers might be interested to know what is going on there.
The first big item for discussion is the Google Settlement.  Europeans don’t like this thing at all and the German government (in the person of Chancellor Angela Merkel) kicked the whole thing off by announcing “We reject the scanning in of books without any copyright protection, like Google is doing. The government places a lot of weight on this position on copyrights to protect writers in Germany.”

Continue reading

In CANADA.

The insta-book tech is available.

We could do this for ourselves … Continue reading

Authors are accustomed to deadlines

but the one imposed on Canadian writers by Google Inc. was disconcerting, to say the least.

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Pamela Samuelson’s Youtube lecture on the Google Settlement, April 09, is an extremely engaging way to get yourself up to speed. She’s a lively, articulate and impassioned speaker. Once you watch this video, you’ll be able to hold your own in any tight-corner debate on the pros and cons of the Google Settlement.

Amaze your friends and impress your coworkers.

Pamela Samuelson, Richard M. Sherman ’74 Distinguished Professor of Law and Information at the University of California at Berkeley and director of the Berkeley Center for Law & Technology, presented this talk on the Google Booksearch settlement at the annual OCLC/Frederick G. Kilgour Lecture in Information and Library Science on April 14, 2009.

Here follows  BBC journalist Bill Thompson’s clear and readable explanation of the problems with the Google Settlement.

The proposed settlement between Google and US publishers must be resisted, argues Bill Thompson

Google is in the middle of a massive project to scan and digitise every book it can get its hands on, whether old or new, and if it gets its way then the US courts will soon endorse an agreement between the search engine giant and the US book industry that will allow it to do this without fear of prosecution for copyright infringement.

Authors and publishers will get some money in return, and we will all benefit from the improved access to digitised books that Google will provide.

The deal sounds like a good one, but not everyone is happy with it. The Department of Justice in the US has begun an investigation to see if it is anti-competitive, and last month a number of library associations got together with Amazon, Yahoo! and Microsoft to form the Open Book Alliance which argues that it should not go forward.

The details of the settlement are complex, and it is almost impossible to be sure what would emerge from it because many of the provisions involve setting up things like a Book Rights Registry, and we don’t yet know what they will look like.

World’s librarian

But whatever the detail there remains a fundamental problem. It is not that the settlement will give Google indemnity from prosecution should it be found to have scanned books that are in copyright without the copyright owner’s position, nor even that it gives Google freedom to exploit scanned content commercially.

It is, rather, that the settlement gives only Google these privileges, and places one company in a prime position to become the world’s de facto librarian instead of encouraging open access, open standards and a plurality of services and service providers.

Neither Google nor any other company should be entrusted with that responsibility, and nothing in the detail of the agreement or the funds that will be made available to authors as a consequence can change this.

If Google is given a monopoly, either explicitly in the settlement or implicitly because any other scanning project would be forced to negotiate its own multi-million dollar agreement, then the deal must be rejected.

If we let Google have its settlement we will all be the poorer Bill Thompson

The proposed settlement came about after Google began a project to scan and index millions of books, including many that are still in copyright.

It was sued by groups representing authors and publishers who felt that scanning books, even if the text was only used to create a searchable index which then pointed readers to the relevant text, was an unlicensed use and therefore illegal.

The book trade was also worried that Google might scan the books under the pretext of creating an index and then start offering them online or even selling them, even though it was always absolutely clear that such behaviour would be a breach of copyright.

Instead of fighting the case through the US courts and winning a great victory for those of us who believe that three hundred year-old notions of copyright should not be used arbitrarily to limit new ways of making use of creative works, Google announced in October 2008 that it had reached a settlement with the US Authors’ Guild and the Association of American Publishers that would allow it to continue scanning with permission.

At the moment the settlement hangs in the balance, waiting for what is quaintly termed a ‘fairness hearing’ in US District Court on October 7.

At this hearing of the questions raised since the settlement was announced will be debated, including the question of how the relatively small Authors Guild came to speak for all published writers in the US, living and dead, in negotiating with Google.

One of the arguments being made in favour of Google, most clearly by US industry analyst Jeffrey Lindsay, is that Google deserves to benefit from having taken the risk of digitising books when the project’s legal status was uncertain and that Google, unlike Microsoft and Yahoo!, has invested millions of dollars in the project and is committed to pushing forward.

Microsoft did indeed abandon its own book scanning project, Live Search Books, in 2008, largely on cost grounds but also because the legal uncertainties clearly exposed the company to potential liability in what was never a core area of its activity.

Tribal lands

But Lindsay’s view seems hard to accept. Pretending that the world’s libraries are some unexplored continent to be opened up and claimed by the adventurers from Mountain View may appeal to the frontier mentality of US commentators, but it is not a metaphor likely to have much appeal elsewhere.

For one thing the bookshelves of the worlds are already inhabited, just like the territory of the United States, and those of us who remember the fate of the Native Americans may not be happy to see Google build its railroad tracks over our tribal lands.

Even without the dodgy analogy, the project of digitising the information held in the world’s printed books is too important to be dealt with purely as a commercial venture between rights holders and a potential supplier of services.

We are at an inflection point in world history, and the transition we are making from analogue to digital is happening so quickly and offers so many delights that there is a temptation to let the past moulder in archive boxes and concentrate solely on the new and digital.

For those who take that view then letting Google pay to digitise books is an uncontroversial decision, one that can deliver more digital stuff to search through without apparently costing anything.

George Santayana wrote ‘those who cannot remember the past are condemned to repeat it’, but it may also be true that those who do not care to digitise their own past will end up paying a high price to regain what they give up so thoughtlessly.

If we let Google have its settlement we will all be the poorer. Not for a while, perhaps, but one day we will need more from this new library of Alexandria than Google is willing to offer, and find that the price it demands is more than we can pay.

Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.

From the BBC World News