Google Crunch Time

02 September 2009

“You know what really annoys me about the Google Books Settlement?” Mrs H said to me this morning over tea…

“No,” I said.

“It is that, even now, there are thousands of really good books which are not getting written because everyone is so sodding stressed about it. That’s what they ought to be sorry for.”

She has a point. I certainly haven’t done any work for the last two days, although that was partly because of an infuriating planning application which has come along. My stress level spiked when I saw the application, but it only really went through the ceiling when I started trying to make my final decision about the GBS. And so, and so… these are the issues, as much for me as for you…

(Not about the planning application. I’ve objected to that and moved on. We’re talking about Google now.)

Must I point out that I’m not a lawyer? That you should draw your own conclusions and not rely on me? I must, I must. This article is my account of my own thoughts: comment, not legal advice.

Once upon a time…

There’s an odd thing right there. This whole mess started in 2005. You know what eBooks were in 2005? They were flipping irrelevant, is what they were. This is a settlement of an action which was brought before anyone cared about the future of eBooks apart from George Walkley. Well, and Google.

Okay, this is the history:

Google started digitising books and making them searchable. This would be fine apart from the fact that they did not restrict themselves to works which were out of copyright.

Some of the books Google scans are in the public domain, and are thus free for anyone to reuse. Google generally makes them not just searchable but available for download as free PDFs. For books still under copyright protection and whose copyright owners are members of the Partner Program, Google follows their requests in deciding how much of the books to make available.  In between, though, is a vast middle ground—perhaps 70% of all books. Google took he position that unless and until it affirmatively heard otherwise from a copyright owner, it would display snippets in search results for books.  In this, Google Book Search set itself apart from other similar programs like Amazon’s “search inside the book,” which also provides snippets and previews, but which is strictly opt-in for authors, publishers, and other copyright owners. [1]

They got sued by the Author’s Guild, an American writers’ advocacy group with around 8000 members, and the Association of American Publishers, an organisation so important that they don’t even bother to put the word ‘American’ in their URL. The case became a Class Action, which means it has the power to bind members of the class involved even if they are not part of the original suit. Class Actions are usually brought in situations where a manufacturer has made a defective product and those injured by it seek redress as a group. This is arguably an anomalous use of the system.

The case did not go to court: rather, Google and the AG & AAP have hammered out a settlement, which must be approved by the court.

It may not be approved because various individuals and organisations, including Microsoft, Amazon, and Yahoo, a bunch of lawyers and privacy groups, and a variety of non-AG writers’ groups, are opposing it, for various reasons we will get to later. (Incidentally: that’s a rough crowd to get into a bar-room brawl with, isn’t it? And when you see them lined up like that, you almost want to take the other side out of sheer cussedness. Stay with me. That may not be such a good idea.)

It may also end up being moot, because Google may face an anti-trust case brought by the US Department of Justice. The US being a bit down on monopolies, if that happens, all bets are off.

Complicated stuff. The reason it’s getting this huge is reasonably simple: this may – may – be the biggest thing since Gutenberg’s bright idea. (No, not Police Academy, the other Gutenberg.)

Looking at the Settlement itself…

The Settlement itself is more than three hundred pages long and written entirely in legalese, which is hardly surprising: it’s a document carved out between a major corporation and its Class Action adversary, intended to redefine the copyright landscape and usher in the digital age. It even comes with its own FAQ.

All well and good; I’m hugely in favour of the clever, idealistic bits of the Google project. They want to solve the problem of orphan works, for example – works whose rightsholders cannot be traced, and which therefore cannot be issued or reprinted, and are falling out of the public sphere. They want to make the world’s biggest and most comprehensive library, and make it easy to search books. Their stated aims are noble and fascinating – although of course, they also propose to make some money along the way.

Basically, under the Settlement, if you published a book before Jan 5th 2009, you give Google the right to digitise it and they give you a standardised piece of the action (shared with your publisher). In the words of the AAP press release:

If approved by the court, the agreement would provide:

  • More Access to Out-of-Print Books — Generating greater exposure for millions of in-copyright works, including hard-to-find out-of-print books, by enabling readers in the U.S. to search these works and preview them online;
  • Additional Ways to Purchase Copyrighted Books — Building off publishers’ and authors’ current efforts and further expanding the electronic market for copyrighted books in the U.S., by offering users the ability to purchase online access to many in-copyright books;
  • Institutional Subscriptions to Millions of Books Online — Offering a means for U.S. colleges, universities and other organizations to obtain subscriptions for online access to collections from some of the world’s most renowned libraries;
  • Free Access From U.S. Libraries — Providing free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries; and
  • Compensation to Authors and Publishers and Control Over Access to Their Works — Distributing payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry that will also locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.


According to the Author’s Guild, the terms of the Settlement are better than the ones publishers get from Amazon, and authors have a lot of control of the material –

•  You aren’t limited to the (quite favorable) royalty rate we’ve negotiated.
•  You have the right to veto your publisher’s decision to make your in-print book available in any way through the settlement.
•  You have the right to block all displays of your out-of-print books, even if rights haven’t reverted to you, even if your publisher wants to display the books.
•  You have the right to have your work in Google’s searchable database and display only snippets to users, blocking all other uses by Google.
•  You have the right to change your mind (allow books you’d previously blocked to be displayed; block books you’d previously allowed to be displayed) at any time.

In other words, the actual deal is pretty good. There are some issues which I’ll come to later, but basically, we should all opt in. Right?

Simple.

Eh. You know I’m going to say it isn’t.

Why it isn’t simple:

Well, because it’s so huge. Because it does change the landscape. Because of how it does it. Three people who have spent a lot of time on this:

James Grimmelmann

It is difficult to overstate the importance of this settlement.  The ongoing shift to electronic publishing is arguably the biggest transformation in books since Gutenberg’s invention of the printing press.  The scale of Google’s plans boggles the mind.  If the settlement is approved, Google will have the closest thing to a universal library the world has ever seen. We should be enthusiastic about the prospect of creating such a library, and concerned that may be under the exclusive control of one company.

Pamela Samuelson

the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus […] would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

Gillian Spraggs

The proposed Google Book Settlement represents an attempt to use the machinery of a private settlement in a civil law case to overturn fundamental principles of national and international copyright law in the interests of Google Inc., a wealthy corporation. It seeks to legitimate a massive appropriation of rights in American copyrights from authors worldwide. It aims to bind authors and their heirs and assigns in perpetuity, in many cases without their express agreement, to a non-negotiable contract of near-stupefying complexity containing numerous provisions detrimental to their rights. It intrudes into existing contracts (including contracts signed outside the US), in many cases assigning to the publisher rights that the author has never licensed.

Yeah. Hm. I said it was a big deal.

Problems:

1. Copyright

Yes, yes, I know, it’s a dirty word on the internet, but copyright (well, intellectual property, but let’s not get into that) is among many other things the instrument by which the law makes it possible for people to make money from mental labour and ideas.

Google’s actions here are a massive rights grab, but more than that, the structure of the agreement is opt-out. If you don’t, you’re in. That’s a massive change. The default position of copyright has always been that if you don’t have active permission, you can’t use the material. That’s what things like Creative Commons are there to get around, it’s at the heart of the issue with orphan works, and it’s what protects creators from large companies bulldozing them.

It’s true that copyright law is also a tool used by large companies to make large profits. It’s true that it is badly in need of reform. But short-circuiting the legislative process in a Class Action Settlement and creating an opt-out situation… that ain’t reform. That’s just kicking down the fences. It invites a situation where a powerful entity can flatten a small rightsholder.

And indeed, that’s sort of the situation with the Settlement. If you opt out, Google say they won’t use your work if you check the box on the opt out form asking them not to, but that it is a choice they’re making. The message is, ultimately, that if you don’t like what they do, you can try your hand at suing Google.

2. Monopoly

Google gets to use orphan works. No one else does. To do that, they’d have to get sued and settle, just as Google have. So Google becomes the default repository of literature and information. Game over. Which is fine so long as Google is the Don’t Be Evil company, but that’s not something you can rely on long term. Plans warp, planes explode, as William Matthews would say. Ultimately, if this is about creating a public resource, it can’t be behind the doors of a private corporation. If it’s not about creating a public resource, it’s a massive rights grab.

There’s also the creation the Registry to worry about… (The Book Rights Registry will be a not-for-profit entity which will maintain a rights database, collect and distribute funds, and resolve disputes.)

Basically, a lot of stuff is getting done here which will have far-reaching effects and which should probably be legislated rather than decided by a court. Power is being apportioned: quite a lot of power. Over us.

3. US Specificity

Yeuch. Now we’re into the really murky. You thought it was murky before? Now it’s murky.

The Settlement is notionally US-based. However, copyright is an international thing. There are issues about whether books are “out of print” – they may be freely available in Europe, but not in the US, for example. Then, too, how does a US court get to decide the rights of non-US copyright holders? How does the Author’s Guild represent me, a non-US writer? Well, okay, I’m published in the US, but the bottom line is: because that’s how US Class Action law works: it defines a class, and purports to bind anyone in that class. But not everyone is happy about that in this context – including the German government.

Oh, by the way, the Registry will have no foreign representation.

It will have the power to bind rightsholders in the event of a dispute.

And arbitrators will be drawn from a pool composed of people selected by, um, the Registry and Google.

4. Advertising:

Google will be using the content to sell advertising space. Righstholders will have no control over what ads their material is used with. Not all ads have been very well chosen in the past. Some have even been offensive. Suppose, for example, that your book ran with ads about gay marriage law which you vehemently disagreed with? Or abortion or climate change or…? See?

5. Secret Clause

No, not James Bond at the MI6 Christmas Party. This is serious.

Yeah, I’ve got the giggles as well. This damn thing is ENDLESS. Still, get it together, we’re nearly done.

Secret clause, right. There’s a termination clause in the agreement which is confidential to the parties. Exactly how I can be deemed a member of the class but not be able to see the full settlement, I have no idea. The point is, rightsholders are being asked to sign up to something which includes an invisible (but binding) clause.

Nice.

5. Quality

There’s no guarantee of the quality of the digitisation. So someone could scan a few pages badly and they’ll be illegible. Seemingly, you have no recourse. More generally, if we’re talking about Google becoming a repository of works which might otherwise fade away, isn’t it important that they actually acknowledge a duty of care in that regard, along with taking whatever profit they’re going to?

Enough!

There’s (MUCH) more, but that’s got to be enough. I’m going mad. You can’t begin to absorb all this, especially not in the time available (deadline is September 4th, but I don’t know what time of day, so it could be Sept 4th, 12:01 am or the other end of the day as the 4th hands over to the 5th. Basically: hours, not weeks. ‘kay?)

The easy option in the short term is to opt in, accept what’s happening, and use the controls built into the Settlement to govern how your book is used, if at all. Being part of Google’s march into the new digital age could be amazing. This deal has the potential to uncork a huge amount literature which might otherwise fade away. The terms of the Settlement are pretty good. Google’s well-positioned to make the eBook come alive – beyond even what Amazon have achieved in that regard. (Oh, and look, Sony is on board with Google. Hm. That’s a pairing which might be able to give Amazon a hard time…)

However…

That may just be an error. As we’ve seen, there are significant problems not only with what’s being done, but the way in which it has been approached. Opting in grants legitimacy – or at least, the appearance of it – to that approach, and of course accepts the terms of the Settlement. It’s possible that one might be able to negotiate, but as James Grimmelmann observes, Google’s attitude seems to be that if something’s not worth doing on a large scale, it’s not worth doing at all. Individual deals are unlikely. (Is that an argument against signing up and trying to change terms subsequently? Or is it an argument against opting out and trying to negotiate a new entry? Both, probably.)

So right now, today, here’s what I think:

I think that this deal is a mistake. I’m not comfortable with being in a standardised bundle which can’t be negotiated, and I’m not happy being in a long-term relationship with Google without ever having dealt with them directly. I’m troubled by the Book Registry, the business of the secret clause and the lack of control over ads. I’m not happy with the monopolistic aspect of the Settlement. But above all else, I think the way this has been done – by bypassing standard practice and arranging an opt-out situation, by cutting a private deal rather than legislating, by linking a fight over past infringement to the creation of an information/literary powerhouse (not that Google wasn’t already a powerhouse) is alarming. It’s not how this stuff should happen, and it shouldn’t stand. We should not endorse it.

AND I’m scared to act on that conviction.

I’m genuinely afraid to turn my back on Google, to contemplate the possibility that I might have to lock horns with them in eighteen months over this. I’m scared of what not being part of their new world might mean in future. If they become the default electronic publisher, and I opt out now, what will happen to me? Will I ever get back in?

Damn, that pisses me off.

It pisses me off so much, it’s almost enough to make up my mind.

Almost. But there are, of course…

Things I don’t know:

1. If I opt out, will a judge in a hypothetical future lawsuit want to know on what basis I rejected the offer on the table? If I say that I believed the process was inappropriate to the task and the outcome, will the judge accept that? Are there legitimate and illegitimate grounds for opting out, in the context of a second anti-Google action?

2. Will enough people opt out to make the point that this isn’t right? Or will I be left standing on a mountain top waving my soft parts at hungry eagles? Survey results… hm. Ambiguous. A lot of people are unsure. A lot of people will opt in for the sake of their sanity. Only 13% believe in the thing as it stands. (Just consider that for a second: this thing will go ahead with 13% support, plus 29% who are okay with it as long as they can change it a bit – which they can’t – 28% undecided and 23% against. Weird.)

3. How exactly will this interface with Google’s Partner Program? Will it affect books I haven’t written yet? (Even incidentally? One way or another, it must, surely…)

It’s endless. Except that in a few hours, it will come to an end.

I have to talk to some lawyers. I’ll let you know what I do.


13 Comments to “Google Crunch Time”

  • […] this page was mentioned by Darren Turpin (@darrenturpin), bcshipps (@bcshipps), Marie Phillips (@mpphillips), Nick Harkaway (@harkaway) and others. […]

  • Matt Keefe said on September 2nd, 2009:

    You’re right, it’s the fact it’s been gone about the wrong way which is the real killer. It’s market conditions determined by class action, which is inherently monopolising.

    The lack of individual negotiation and choice is also deeply alarming. The only time we don’t have this option is interactions with the state – we don’t strike personalised tax deals with the Inland Revenue, for instance, or negotiate individual exemptions from various criminal laws we’d rather not be bothered with – but this is a purely private agreement involving a private company which functions in the same indiscriminate way. It makes Google, if it so chose to be, just about the closest thing to a state-corporate we’ve ever had (or I might be exaggerating a bit for drama, but something like that).

    I wouldn’t worry about what happens in the future, though; I don’t think it’s possible to worry about those things in any useful way because nobody knows what is going to happen. For all the reasons you’ve outlined, right now, in the present, opting-in is not a good deal. I think you can only make your decision on that basis. The rest of it really will have to be left for another day.

    Good luck, Mr. H!

  • Nick Harkaway said on September 2nd, 2009:

    And here’s an additional question, just for fun…

    Is opting out a useful way of objecting to the Settlement? Or does it simply disenfranchise you, short of the option to sue one of the most powerful companies on Earth?

  • Matt Keefe said on September 2nd, 2009:

    I don’t know if it’s a useful way of objecting to the settlement – genuinely useful forms of objection, in almost any walk of life, are virtually non-existent, if we’re honest with ourselves – but I do think it’s a useful form of personal action. For one thing, it keeps the settlement current in your thoughts and does hold out the possibility of eventually forming a useful counter-argument, coming up with a better way to protest, or conjuring up a superior alternative; opt-in and the chances are you’ll simply come to accept it, forget about it, and sooner or later be playing the game the same as everyone else.

    Further, you don’t know how many people will also opt-out, or how much prominence the stand of those who do might eventually gain. I only have one published novel, and that’s a throw-away, franchise paperback thing, but it is out of print; I obviously hope to be published again in future. For the time being, my intention is to opt-out – this blog, and other information I’ve gleaned via the likes of yourself, have guided me towards that decision and I doubt I’d have come to it otherwise; I would, in all likelihood, have been almost entirely ignorant of the settlement. Having been alerted to it, I feel opting-out would be the right thing for me to do. You never know how man similar cases there may prove to be. Does your own opting out usefully protest the settlement? Possibly not. But does it hold out the possibility of everyone’s opt-outs reaching the tipping point at which they matter? Yes, and especially so when backed up by thoughtful blogs like this one, widely disseminated.

    Last of all, unlike the perennial ‘everyone should vote or the BNP will get in’ argument, I don’t think opting-out of this settlement disenfranchises you – frankly, the deal as offered isn’t good enough for that to be the case.

  • […] is the original post: Google Crunch Time | Nick Harkaway This entry is filed under Google History, History. You can follow any responses to this entry […]

  • Susie said on September 4th, 2009:

    was directed to this blog by the Guardian page today – i’m waiting for a reply from my literary agent on his view on the opt-in/opt-out scenario… yesterday i searched google books and was annoyed to see how much material – okay, snippets, but still, who asked me? nobody – of my work is readable online (luckily so far not an entire story from a book, as one person pointed out to be sulkily, meaning that he had to go on Amazon and -gulp – buy it, for £2)

    So – I’m very confused!! confused about the date/time/US issue – why are all these university depts in Michigan and elsewhere scanning my work anyway? Why isn’t my publisher giving me info? Why isn’t ALCS or SAC coming out with a definitive answer/ Goddamit, must i employ my feeble brain cells in trying to comprehend this (bearing in mind that I can barely fill in a tax form the accountant has marked in pencil for me) – i dislike the feeling of intimidation this induced in me when looking at the official info on the Google pages – me, Samson aged 2, you Goliath and all your shark-friends, that kind of thing.

    HAve I decided? NO.

    Should I object out of instinct alone?

    Probably.

  • Prince Wao said on September 4th, 2009:

    Is it right that a burglar can legally take and use your possessions for their own profit unless you’ve signed an opt-out agreement you didn’t even know existed – the legislators behind this not even coming from your nation?

    What’s to stop the Chinese courts – or any other nations’ – also deciding that one of their companies have rights to profit from your work without even consulting you?

    The whole thing is madness. Real legislature should apply to all matters of intellectual property just as they do to physical property; and no single company should ever be permitted to control a world library.

  • […] you want a view from the front line, you could do an awful lot worse than this post by British author Nick Harkaway, who points out why he’s concerned. I think that this deal is a mistake. I’m not […]

  • […] you want a view from the front line, you could do an awful lot worse than this post by British author Nick Harkaway, who points out why he’s concerned. I think that this deal is a mistake. I’m not […]

  • […] is, ultimately, that if you don’t like what they do, you can try your hand at suing Google. Google Crunch Time | Nick Harkaway   « Maybe we should stop the sniveling about how something is said, and pay more […]

  • Kit Berry said on January 25th, 2010:

    This whole thing completely does my head in.

  • Nick Harkaway said on January 25th, 2010:

    Yes. it is the head-do-innie thing. I know. And yet, it’s the price of admission.

  • […] in Oxford for years).If you want a view from the front line, you could do an awful lot worse than this post by British author Nick Harkaway, who points out why he's concerned.I think that this deal is a mistake. I'm not comfortable with […]

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