Time for a Google Books Settlement update…
First of all, the Fairness Hearing – the bit where Judge Chin decides whether the Settlement is acceptable to the US court – started on Friday. James Grimmelmann has a transcript here. As you’d imagine there’s a lot of it, but the Maestro has helpfully culled a summary here and here. Even the summaries are not short, but hey: this is rather a significant thing. You can cope.
A few things which have occurred to me of recent days, as a result of the hearing, and of some meetings I’ve been to:
1. Orphan Works
Somewhat startling discussion between Michael Boni for the Author’s Guild and Judge Chin. I’ll reproduce Laboratorium’s account here and then say a couple of things…
Judge Chin: What about those [opted in rightsholders] who don’t come forward?
Boni: They’ll be looked for.
Judge Chin: Aren’t the vast majority out of print?
Boni: So far, some 620,000 out-of-print books have been claimed by 40,000 authors, through the notice program alone. We expect to find a lot of these people. We’ve had an 85% success rate; the UK licensing society has found over 90%.
First up: it’s vital to distinguish here between books which are out of print, which frequently come back into print and (especially if there’s been a film or the author has won an award) sell more copies than they did first time round – and orphan works whose copyright owner is impossible to locate (for a given value of impossible).
Second, Boni seems to be saying here that they expect to find a high percentage of the rightsholders. If that’s the case, I have to ask what we’re all doing here. The whole point, surely, of an opt-out settlement is to bring in those works for whom no negotiation is possible. Otherwise this is just a massive compulsory licensing system for the convenience of a large media company.
Third, the discussion of orphan works has become something of a magic word in copyright reform and Digital Economy chatter in the UK. I’ve been guilt of taking this at face value myself. That figure of five to ten million orphan works is impressive, but it’s a little misleading. Some estimates put it as low as five hundred thousand. If Google expects to find 85% of those rightsholders eventually, then the number of works at risk of loss is… er… well, seventy five thousand at its low end and seven hundred and fifty at the top. Not so impressive as a bargaining chip, is it?
2. The Plan
I think a lot of people are assuming merrily that Google has A Plan. This is very comforting for publishers and agents and writers alike. The digital world is looming and digital piracy (or filesharing or booklending, call it what you like) is already begun. It’s a scary new world, and ho ho! Here’s the most friendly face in it – or one of them – offering to sort it all out. Yay!
Except the thing is Google doesn’t seem to have a plan. Google has a belief in Creative Destruction and a sense that if they put stuff out into the world first and find ways to monetise it later, that will work. It has done before. Never mind that inductive reasoning is not dependable (ask a turkey) or that it may, if it works, work because of Google’s stunningly privileged position as the index of the web rather than because it’s a good way of dealing with stuff. It’s only ‘creative’ if what is produced is better and more powerful and brighter than what was there before, and there’s actually no particular reason to believe that to be the case. This may just be destructive destruction of an industry which is heavily bound up in the culture of our nations and whose existence props up the production of long-form fiction and all sorts of other stuff, in favour of, er, Google and companies like it which are essentially aggregators and searchers rather than content creators.
Google has said repeatedly that they are not entering publishing, and we tend to take that with a pinch of salt. Guess what? I think it’s absolutely true. They’re not. If they end up being in the position where they have to take over some of the roles of publishers, that will be a side effect rather than an ambition, and they may not do it very well. Indeed, they may choose not to do it at all, leaving the broken bits of our industry to fester where they lie.
Or they may become a great publisher. The point is, I don’t think they know.
3. The Plan (2)
Google’s mission statement is “to organize the world’s information and make it universally accessible and useful”. The Settlement cuts off in January last year, and from now on, Google will notionally be focusing on contractual and legislative means of acquiring the right to display books. Unless they can persuade the governments of the world to grant them an compulsory license (unlikely) there will be books whose rights they do not acquire. In fact, there will be many. The publishing industry produces hundreds of thousands of new books every year. A percentage of those will be exclusive to other internet formats. Some of those will be successful. Google will be in the position of watching its library shrink in proportion to new output. So here’s the question I’d really like an answer to:
Are we going to go through this whole process again in ten years time with Son Of GBS?
Because you have to wonder.
