Writers groups warring over Google settlement.

The American Society of Journalists and Authors (ASJA) has announced its opposition to the Authors Guild settlement with Google over scanning books in and out of print into a Google-run database.
.See: http://www.asja.org/google/

The group contends the settlement impinges on traditional copyright protections and Congressional prerogatives in this area.  For the Authors Guild take on the controversy, see: http://www.authorsguild.org/ 

Amazon has also filed its opposition to the Google settlement agreement with the Authors Guild. The settlement, if approved by a federal court, would allow pay authors who opt in a portion of proceeds derived by Google by making scanned books available to libraries and on-line to the public from home computers. The settlement establishes an Authors Registry to dole out the dollars, with the lawyers in the years-long litigation getting paid $45 million up front. For further details, see FWF story below.

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Independent Writers Group Says Freeing Saberi Good First Step

WASHINGTON—American Independent Writers and the organization’s Freedom to Write Fund today applauded the release last week of journalist Roxana Saberi by the Irani government, but acknowledged that the efforts of Americans cannot stop with her.

“While one journalist is free, many languish in prisons around the globe,” said  Cecilia Sepp, AIW’s president and member of the Board of Directors of the Freedom To Write Fund. She cited research by the Committee to Protect Journalists which indicated that about 125 journalists worldwide remain in prison.

For example, Sepp said, “ U.S. journalists Laura Ling and Euna Lee have been in a North Korean prison for two months and are to be tried by the North Korean government. AIW supports the freedom exercised by heroic journalists like Ling and Lee and demands their earliest release from captivity.”

The AIW Freedom to Write Fund (FWF) is a non-profit charitable organization dedicated to education and public advocacy on behalf of the community of writers, whose work is essential to a democratic society. FWF is developing a wide range of innovative approaches to:

• Providing educational and support services for writers,
• Establishing a Writers Action Group to address the shrinkage of traditional reporting media, and
• Championing issues that threaten free gathering and dissemination of information and opinion, including free expression, access to government information and ownership of written content.
  

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Google Settlement to Pay Lawyers Up Front, Authors Eventually
Opinions on Settlement Differ, But Negotiations Cloaked in Secrecy by Non-Disclosure Agreements

By Andrea Foster, Freedom to Write Fund

The $125 million out-of-court settlement of a lawsuit authors and publishers brought against Google over the company's digitizing of millions of books promises eventual compensation for the creators but an immediate pay-out of up to $45.5 million to the lawyers who negotiated the landmark agreement. 

At the same time, talks surrounding the decision to allow public access to copyrighted works, for a fee, are shrouded in secrecy by a non-disclosure agreement. 

Google has borrowed from university libraries, scanned, digitized, and made searchable online about seven million books. Between four and five million of them are in copyright and out of print. These books and millions more like them form the crux of the settlement. 

It allows Google to continue digitizing such works, giving the company a database of at least 20 million books.  

In return, Google would spend $34.5 million to establish a book rights registry that would pay out to itself, authors, and publishers a portion of revenue generated from people paying to read or partially print out a book, from online advertisements that accompany the books, and from institutional subscriptions to the books. The registry would include scanned and yet-to-be scanned books. 

But it may be several years before authors and publishers see money from the registry. Google has to, among other things, build the database of books, determine what the price for access to them will be, make it easy for the public to navigate the database, and install protections to prevent the books from being pirated. Disputes between publishers and authors over who holds the rights to certain works also need to be resolved, said Michael J. Boni, the lead lawyer for the Authors Guild, which challenged Google's project in a class action suit three years ago. The registry is a "massive undertaking," he said. 

Aside from getting money from the registry, authors and publishers would get $45 million, or at least $60 per book that the company already digitized or will have digitized by May 5, 2009. Payment would arrive sometime after January 5, 2010.  

Lawyers will get paid the quickest. Within 10 days after a judge approves the settlement Google would give $30 million to lawyers representing authors, and as much as $15.5 million for lawyers representing publishers.  

In a series of interviews, authors, librarians and others expressed differing, sometimes clashing views on the settlement. 

Google did not respond to requests for comment. However, when the agreement was announced in October, a company executive trumpeted the agreement on Google's blog. "What makes this settlement so powerful is that in addition to being able to find and preview books more easily, users will also be able to read them," wrote David Drummond, Google's chief legal officer. "And when people read them, authors and publishers of in-copyright works will be compensated.” 
Publishers, scholars, and authors, along with Google, have hailed the agreement as a boon to book lovers and an ingenious solution to the thorny issue of how to fairly compensate authors and publishers in the digital age. Books and periodicals are quickly moving online, and the public, it seems, expects to read it all for free. 

But critics say the settlement is flawed. Some are troubled that those privy to the settlement negotiations are barred from disclosing any details. Many scholars are disappointed that Google failed to defend what they see as the legality of digitizing copyrighted books. Others worry that the agreement gives Google too much power. They fear that the company will monopolize commerce around digital books, or will hide certain books from its database if it fears their distribution would threaten the company's bottom line.  

Paul Dickson, one of five authors to join the suit against Google, views the settlement as a vindication of authors' claims that Google had been stealing their work.  

"For independent writers this is a glorious moment," said Dickson, of Garrett Park, Md. and the author of 52 books. 

He said he was angered to discover that Google had scanned and digitized three of his works from the University of Michigan's library: Family Words, The Official Rules, and There Are Alligators in Our Sewers and Other American Credos. The last he wrote with Joe Goulden of Washington . Initially, he said, an entire work was available for on-line viewing, although that allegation was not included in the lawsuit he and Goulden signed onto.  Google later changed its policy to show only snippets on line, a practice Dickson said would still allow a determined reader to view substantial portions of the work for free without the copyright holder's permission. 

"Writers were tossed off the cliff for the Internet age," he said. The settlement "establishes the right of authors to own their own property." 

He and Goulden have heard scholars argue that Google's digitization project is a noble effort to preserve scholarship and that copyright law tilts too much in favor of rights holders. But only college professors have the luxury of advocating that viewpoint, they said. 

"The loudest yelps about 'freedom of the marketplace of ideas' come from academics who have full-time/low-hours-worked jobs and travel under various 'research grants,' not on their own pocket books," Goulden said in an email message. 

Under the agreement, Google would get 37 percent of revenue generated from the book registry and authors would get 63 percent. Only authors who sign up with the registry would get payment from it. 

Authors who do not want to be part of their settlement must, by May 5, 2009, request to have their names and works excluded from the book registry. If they want a particular digitized book removed from Google's database or want to prevent Google from digitizing a work, they would need to request that action by April 5, 2011, otherwise the work could end up in the database.  

Boni, the Author's Guild lawyer, said the group made the right decision to settle the case rather than argue before a judge that Google was infringing on authors' copyrights. 

"We have a groundbreaking book-publishing deal the likes of which the world has never seen," he said. "We could never have gotten that had we brought this case to trial." 

The Association of American Publishers, which filed a separate suit against Google for scanning copyrighted works, also applauded the settlement. 

Jeffrey P. Cunard, the lead lawyer for the publishing group, said that if his clients brought the case to trial it might have taken many years and many appeals before the suit would have been resolved. And it was never clear whether the publishers would have prevailed, he added. 

Publishers and authors anticipate that the bulk of money to the book registry will come from institutional subscriptions to Google's database. Under the agreement, academic institutions, libraries, and corporations could purchase subscriptions to the database allowing the public, students, scholars, or employees to read and print out books in their entirety. The price of such subscriptions has yet to be determined. 

Although Google, publishers, librarians, and authors pride themselves on supporting information sharing and free expression, the public will likely never know how the agreement was reached or what the litigants learned during the negotiations. That's because anyone who offered their advice and expertise to lawyers involved in settling the suit had to sign a sign a statement saying they would keep mum about the discussions, which lasted for at least two years. 

Such non-disclosure agreements are typical when lawsuits are settled out of court. 

"It's completely normal to have a non-disclosure agreement otherwise people could be inhibited in what they could say during negotiations," said Cunard. "You want to encourage open and candid discussion of ideas." 

But Siva Vaidhyanathan, an associate professor of media studies and law at the University of Virginia, said the statements are antithetical to the principles of librarianship: open access to information, freedom from censorship. At least two scholars who signed the confidentiality agreement said they were uncomfortable doing so. 

"I'm a college professor," said Paul N. Courant, university librarian at the University of Michigan who also teaches economics and public policy at the institution. "I believe in clear light on everything." 

Michigan was the first library to offer its books to Google, agreeing in 2005 ---after secret negotiations---to let the company scan and digitize its entire collection, about 7.8 million works. Other libraries have provided Google with just a portion of their collections. Larry Page, cofounder of Google, earned a doctorate in computer science from the university, and appealed to the university president to let his company digitize Michigan's collection. 

Georgia Harper, a copyright lawyer who is the scholarly-communications adviser for the University of Texas, also signed the nondisclosure agreement with reservations.  "Thank God the nondisclosure agreement is finished," she wrote on her blog Collectanea. "I'll never sign one again. You get to know incredible things, be a part of incredible things, but you can't talk to anyone about it. I hate that." 

Anne R. Kenney, Cornell University's librarian, also signed the non-disclosure statement, saying she was privy to the negotiations a few months before the settlement was announced. 

"It gave me pause," she said of the confidentiality statement, adding that she wished more librarians were involved in the discussions. 

Cornell is shipping about 10,000 books a month to Google to digitize. 

Ultimately, the librarians viewed the non-disclosure agreement as the bitter pill they had to swallow in order to achieve an outcome that would give academic institutions, public libraries, and computer users access to a vast array of out-of-print, in copyright books. 

Public libraries, most colleges and universities would get a computer terminal with free online access to books in Google's database. Users would pay money into the registry to print out book pages. People, from the comfort of their homes, also could call up a book on a computer and pay into the registry to read all of it online. 

"We now have a structure which is going to allow everything that's ever been published to be available on market terms, online for individuals and educational institutions," said Courant. "This was unimaginable five years ago. It's astonishing." He said librarians thought it would take at least a century to have their collections digitized. Google has said it can do it in about 10 years. 

Ideally, though, Courant and many other scholars would have preferred to see Google defend and win its controversial claim that scanning and digitizing copyrighted works and displaying snippets of the text online is allowable under copyright law's fair use exemption. Such a decision would have set a legal precedent that would have given other organizations the green light to digitize copyrighted works without fear of liability. 

Librarians, in particular, prefer a lenient interpretation of fair use, believing that it promotes research, cooperation among scholars, and the expansion of knowledge. They also believe that everyone benefits when more groups get involved in digitizing books, which crumble and disintegrate with age. In digital form they can live forever and become more widely accessible. 

Instead of risking losing its fair use claims in court, though, Google chose a more cautious approach and decided to fund the creation of a book registry that would compensate authors and publishers while guaranteeing Google a steady stream of revenue.  

The settlement is non-exclusive, which means that Microsoft, Amazon, Yahoo, or any other technology company can digitize and sell in copyright, out-of-print books. But it's unlikely they will since Google will have a jump start in forging relationships with a lot of authors and publishers via the book registry, because of the millions of dollars involved in digitizing books, because of Google's access to stores of these books at university libraries, and because of the company's dominance in book digitization. 

Microsoft got out of digitizing books in May of this year, cementing Google's role as the leading commercial enterprise digitizing books. 

"This settlement ensures for the foreseeable future that Google will be the sole major outlet for digital access to out-of-print books," Vaidhyanthan, of the University of Virginia, said. 

And remarkably, he added, it is being accomplished with the assent of librarians. "Google is going to open little bookstores in libraries all across America. It's a stunning and radical change for libraries in this country, and it's entirely dictated by Google's market power." 

Over time Google and the registry could establish other revenue streams for Google's database, such as print on demand, PDF downloads, and college course packs. 

James Grimmelmann, an associate professor at New York Law School, favors the settlement, but he has a number of concerns that he describes on his blog, The Laboratorium, and that he says a judge should address. For example, he says the agreement gives Google special treatment, or "most-favored nations" status since within 10 years after its approval no other group could receive more favorable economic treatment with publishers and authors than Google. 

Grimmelmann refers to this passage from the settlement, which he said should be struck from the document: 

"The registry...will extend economic and other terms to Google that...do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the registry...when such authorizations are made within 10 years of” approval of the settlement. 

Grimmelmann finds other flaws, too. He says Google could exclude a book from its database for purely editorial reasons and not inform the registry or the public. He says Google could collect private information about users and their reading habits.  

Anyone who wants to lodge a complaint against the settlement has until May 5 to do so. A court hearing on the fairness of the settlement is set for June 11 in the U.S. District Court for the Southern District of New York.  District Court Judge John Sprizzo gave the settlement tentative approval in November. 

The Open Content Alliance, a nonprofit that is the only organization besides Google still involved in large-scale digitizing of books, is grappling with what the settlement means. The alliance scans and digitizes library works that are primarily only in the public domain. 

Brewster Kahle, an entrepreneur and librarian who helped create the group, is disturbed by what he's heard and read about the agreement. He would have preferred to see Google offer payment to rights holders whose works the company already digitized without permission, and leave it at that. 

The settlement, he says, creates "a system going forward that reinvents a new copyright office, new copyright laws, a new payment system and all revolving around a single monopoly for access to the collective books of humankind." 

Assuming the settlement is adopted as is, Kahle imagines it would be relatively easy for a dictator, a politically-connected organization, or a financial powerhouse, to call up Google and have it remove a controversial book from its database or give it a low profile, effectively censoring what people read online. 

For Google's database to become that significant, though, the company would need to entice a lot of libraries to take out subscriptions to the database.  

Whether that will happen is unclear. Academic librarians say they are still trying to understand the details of the settlement and are weighing their options. 

One prominent library director has already indicated a wariness about the settlement, though. 

Robert C. Darnton, Harvard University's library director, told his library staff members in an October letter that Harvard will allow Google to continue scanning out-of-copyright books but not in-copyright works. 

"The concerns that kept us from participating in the settlement to date relate to provisions about how the public access and subscription services would work and what they would cost, what material would be included, and whether the ways in which digitized volumes are captured and shared would reduce their utility for research and education," the letter read. 

Darnton, through a spokesman, declined to elaborate on the letter. 

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Andrea Foster is a veteran journalist whose specialty is education, technology, and Congress. She wrote for eight years about the intersection of academe and technology for The Chronicle of Higher Education, and before that, for The National Law Journal and Congressional Quarterly, among other publications. She earned a master's degree in journalism from Columbia University.

The Freedom to Write Fund (FWF) is the foundation arm of American Independent Writers (AIW) and supports the efforts of writers to gain access to information and thereby to inform the public on matters essential to an open, democratic society.  This story is the first in what we plan to be an ongoing series of probing reports from FWF on the thorny issues raised by impediments to the free flow of information.