Writers’ Roundup

Canadian Writers’ Group  files last-minute objection to Google settlement

February 2, 2010 | 7:16 PM | By Stuart Woods, Quill & Quire

http://www.quillandquire.com/google/article.cfm?article_id=11130

Last week marked two important milestones in the Google Book Search settlement: not only was it the opt-out deadline for authors, it was also the last chance for individuals and organizations to file objections to the settlement with the New York court overseeing the case.

The Association of Canadian Publishers and the Canadian Publishers’ Council both filed briefs in support of the settlement prior to Thursday’s deadline. However, an ad hoc writers’ group, known as Canadian Writers Against Google Settlement, called on the court to reject it. The brief was signed on behalf of some 175 Canadian writers, including Susan Crean, Heather Robertson, Monique Proulx, Russell Smith, Charlotte Gray, Judy Fong Bates, and Patrick Lane.

Prepared pro bono by University of Ottawa copyright lawyer David Fewer, the brief is the first to be filed by a group directly representing Canadian content creators. (The Writers’ Union of Canada, which represents more than 1,700 writers across the country, has not taken a firm position on the issue.) “This is a fairly strong statement by a large group of Canadian authors,” says Fewer, who is the director of the Canadian Internet Policy & Public Interest Clinic. “I would expect this to be taken fairly seriously [by the court].”

The brief is only the latest in a mounting tide of opposition to the settlement, which many are now speculating may be in jeopardy. The original settlement, which was taken off the table last October in the face of mounting global opposition, applied to publishers worldwide. A revised settlement, which will be the subject of a fairness hearing scheduled for Feb. 18, applies only to rights-holders in the U.S., Canada, the U.K., and Australia.

At the very least, Fewer expects the amended settlement will have to be revised again to exclude Canadian and other foreign rights-holders. “All of the reasons for why the rest of the world got excluded apply to Canadians,” he says, “and the onus is effectively on the parties in the settlement to say why Canadians should be included.”

In particular, Fewer says, the Google settlement fails to honour the Berne Convention governing international copyright and disregards the unique trade relationship between Canada and the U.S. under NAFTA. The settlement also disregards Canadian provisions for addressing orphan works, respecting moral rights, and providing privacy protection to readers online.

“There are some pretty significant distinctions between Canadian copyright law and American copyright law,” Fewer says. “It’s a very dangerous assertion to say that … we should be bound by a class-action settlement [in the  U.S.]”

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

I have opted out. Nobody right now may be rushing to obtain erights to your out-of-print titles or books published prior to 2009 but this is only temporary. I opted out because I will not surrender my erights in perpetuity for a pittance to Google Corporation. Note that they offer to pay “net” of expenses. Net of expenses is called “monkey points” by writers in the movie business because net of expenses tends to inspire creative accounting on collectors’ parts. Collectors benefit first; writers are paid last. Net means whatever’s left after the Registry has deducted its own (unknown) operating costs. The Registry is not a neutral, altruistic, collection service for writers and publishers. It is the collection arm of the Google Corporation.

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