There are far too many of you now to email separately.  But I have very much enjoyed corresponding with you, and if you would like to reply, please do so.

I have had a lot of questions from you about when this mess might get resolved.  Short answer: nobody knows.  The judge in New York City has given no indication when he will rule for or against the settlement, though one educated guess put June as a possibility.  The judge has a lot of issues to think about, from class action law to international trade agreements.

There has been a wide range of comments from you about the passivity of your respective writers’ associations. You asked: why was it up to individuals to object?  Good question.  Maybe you should ask it of your groups’ representatives, executive, and legal counsel.

In sharp contrast, all major US writers’ groups (except the Authors Guild, which negotiated it) condemned the Google Grab unequivocally.   These were: ASJA (American Society of Journalists and Authors), NWU (National Writers Union), and SFWA (Science Fiction and Fantasy Writers Association).

I am happy to report, however, that one Canadian group did step up and demand rejection of the settlement.  CAUT (Canadian Association of University Teachers) is comprised of 65,000 members, and their brief focused on academic writers.   “CAUT counts among its members many tens of thousands of authors, authors who come from all provinces and territories of Canada. By definition, such Canadian authors are members of the class and bound by the PASA. (Proposed Amended Settlement Agreement). The PASA– a private commercial document negotiated between a commercial actor (Google) and American commercial writers’ and publishers’ representatives (the Authors Guild and the American Association of Publishers) – reflects the commercial interests of its negotiating parties.  These interests are commercial – not academic – and American – not Canadian.”  Here’s the brief: http://www.caut.ca/uploads/CAUT_Google_Settlement.pdf

There has been a dramatic new development in the Google Books story.  A coalition of photographers and illustrators, led by the American Society of Media Photographers, has just sued Google for copyright infringement.   Those of you who have books with visual material in them may be affected by this.  Up to now, the settlement has only applied to the printed word, leading to the possibility of Google displaying the text but not the images of certain books… a peculiar notion when you consider childrens’ books.  This development could very well tie up the deliberations.  Those of you who are affected by it might consider anti-Google action on behalf of Canadian photographers and illustrators.  Meanwhile, Google keeps on copying, with no injunction to stop them.  Here’s the lawsuit brief:  http://reporter.blogs.com/files/complaint-2.pdf

Best Regards, David Bolt

Debunking the latest Google fictions …

Fiction #1. I’m going to get $60 a book.
In your dreams.  Note that it’s (US)$60 per book to “the rightsholder”.  How that gets split between authors and publishers remains to be determined.

And if the book is deemed “in print” (many US publishers say all their
backlist is now in print forever because they are making it available in
POD or e-book format), the $60 is paid to the publisher.  It’s up to the
publisher to decide how much, if any, to pass on to the author(s),
according to the split specified in the author-publisher contract (which
of course probably didn’t provide for such a situation).

Even if authors believe that they own the electronic rights 100%, I think
the best they can hope for with most publishers is for the $60 to be
treated under the subsidiary rights clause, with a typical 50/50 split, or
US$30 per book for the authors.  More likely publishers will treat the $60
under the book royalty clause, and send the authors US$6-9 per book. To
get any better split, authors will have to take publishers to arbitration
or (maybe, if they can get past the arbitration clause) to court.

Fiction #2.  If the GBS is rejected, it will result in the lawless digitization of books.
This assertion is repeated often by The Authors Guild and TWUC (The Writers’ Union of Canada ) in the hopes that it will sink in.

In reality, the rejection of the GBS will result in Congressional legislation and the rule of law.
The Authors Guild likes to call this notion “Utopian”.  But it is not. The U.S copyright office was pressing for copyright legislation — as well as for the teeth to enforce it — before being interrupted by the GBS.  Constitutional copyright reform is front and center in this debate.  The GBS turns copyright law on its head, by turning a class-action settlement into an ongoing commercial deal, and this has offended a great many U.S. legal and constitutional observers who are making their concerns known to Congress.
The following eloquent quote from James Grimmelmann at New York Law School should be cast in bronze and put on bulletin boards across the country.

“From time to time, I’ve argued that the Google Books settlement tries to launder copyright reform legislation through a class-action settlement. In response, people often argue that Congress isn’t likely to pass copyright reform, or will foul up the task even worse if it tries. True or not, this misses the point. As outside critics, we can debate whether courts or Congress are more competent to fix copyright. But if the courts give up on Congress, then all is lost, not just for copyright, but for our constitutional democracy as well.”

Fiction #3. Those of us who want the GBS rejected are Luddites, anti-technology, anti-information, and just so 1990’s.
Not so.  Those who think the GBS is the only answer to out-of –print books are the ones who are out of date. Get with the program, chickadees, this is 2010 and you are so 2005.

It’s getting cheaper and cheaper to digitize books, and companies are springing up all over the place which are ready to do that and give copyright holders a much better cut of the profits.  But the reality is that confused copyright holders, baffled by the GBS, won’t realize this until it is too late.

Fiction #4. The Authors Guild is fighting on our behalf
Well, maybe at the beginning.  Now, the AG is part of the problem.  They have become partners with Google, collaborators in the deal.  They have a lot of time, effort and money invested in this, and are now determined to see it through.

The American unions fighting on Canada’s behalf are now the National Writers Union, the American Society of Journalists and Authors, and the Science Fiction Writers Association.  They want the settlement thrown out.  They are the good guys.

The GBS should have been reparation for past copyright infringement, but it turned into an ongoing publishing deal.  And for a number of reasons it creates a de facto monopoly.  This is a threat to a free market in electronic versions of out of print books, and is also a threat to the principles of class-action law.  For those interested in the abstract legal principle and precedent, the principle and the precedent are not that abstract.  An exact analogy in class action law would be Dow Chemical and the Bhopal spill.  If that settlement had functioned the same as the GBS, Dow would still be polluting but the victims would get a cut of the profit.

Fiction #5. Resistance is futile
This attitude is very prevalent.  It is always accompanied by such phrases as let’s be realistic and hold our nose and make a deal with the devil because… well, some people just like to see the world like that.
But the fact is, New Zealand, Ireland, India,  South Africa, all of Continental Europe, protested.  And they are all out of the GBS.  Google scares surprisingly easily.  GBS spokespersons like to claim that the settlement is now restricted to the U.S., Australia, U.K. and Canada for administrative convenience.  But — to put it in the most euphemistic way possible — they are saying that which is not so.  The rest of the world is out because they protested.

If  we all push together, we can get out of this mess.