Why did the larger publishers settle with Google? It’s pretty simple, I think.
Google has a lot more money to fight on this issue than even large publishers can spare.
More, the precedent set when Google was sued for scanning and indexing web sites might seem to apply to books and book scanning. After all, judges aren’t usually from an intellectual property background. Even IP lawyers often don’t really understand all of the ramifications of an event in our complicated industry, and this infringement takes us deep into complex territory.
So, the publishers looked at those two pieces of information, and decided to settle for something rather than take the chance of spending unbelievable amounts for legal fees and in the end, losing an enormous amount.
Is this settlement better for them than for us? Of course it is. Is it better for all the parties who crafted it than it is for us? Naturally.
Is it the best deal we’re likely to get? Yes. Even if you pull your books out of the settlement, all you end up with is the right to sue. Google can, and probably will, still infringe your rights. If you sue, you will face the same Hobson’s choice that the larger publishers did.
Is this just? No. Is it right? No. Has Google failed in its pledge not to be “evil.” According to their lights, no. They see the action of rights holders as evil in preventing Google from accomplishing something that they feel is a great social good, when we’re (again, in Google’s view) acting only for our own gain.
This is one of those quasi-religious arguments where every side is convinced that it’s right. And it’s one where you may have to settle for what you can get, in order to avoid a Pyrrhic victory or an annihilating defeat.
Or so I see it.
Oh, and if you’re not a US author or US publisher, should you care? Oh, yes. Your books will be scanned just like ours, if they’re in a library here. And they probably are in one library or another.
Marion, Your analysis makes sense to me. I wonder what happens when, as will surely happen someday, Google falls on bad times and can no longer afford to support the “socially good” database of all books??? – Dave
While I can’t really dispute your analysis, I find it difficult to accept your conclusion that we have little choice but except to relax, lean back, and enjoy it.
It may be an exercise in futility, but at Slipdown Mountain Publications LLC we’re opting out. I’ve participated in two recent teleseminars on the topic, read everything I can get my hands on (including the complete settlement package) and am just mad as hell
I have considered Google to be an unethical business for years, especially since their flagrant disregard of copyright protections. I do not for a second believe that they are looking after a “great social good.” Nonsense, they are after the profit. Period. Law and ethics be damned. Much like Microsoft and far too many other mega-companies these days.
I even try to use other search engines as much as possible because I’m am so PO’d at Google.
We’ll take our chances, go it alone, and rely on good old-fashioned marketing to sell books.
Does anyone really believe they’re going to see any noticeable income from this settlement and its over-ballyhooed Books Rights Registry? Don’t be fooled by that alleged 63% of NET revenues, when what can be deducted is far from clearly defined or limited.
If only more indie publishers would show some backbone, resist Google’s arrogance, and declare, “We’re mad as hell, and we’re not going to take it anymore.”
Marion – You have captured my sentiments perfectly on this. I’m just not into “jousting at windmills” – I’d rather spend my time finding more ways to sell my book instead.
Any suit against Google would probably have to be a class action suit. I cannot believe that Google could always outspend any and every group of corporations and/or individuals that sued them. At any rate, if we do not want US copyright law to be seriously eroded, we have to protest. If Google does seriously erode US copyright law, Canada, the UK, or Australia will be seeing my immigration application. I’d rather move than give up my business.
Ironically, the Settlement is being actively opposed by some powerful entities, including Microsoft, who feel that if anyone is going to profit from selling “orphan works,” Google should not have the monopoly on it that they are accusing Google of trying to establish. I cannot agree with their agenda, but if they overturn the Settlement that is to my benefit.
I opted out of the Settlement in January 2009. I’m a self-publisher of, to date, eight books (including one with a second edition in print, and the first edition out of print). I “opted them out” of Google Library Project scanning to begin with, but I doubt Google paid much attention to those opt-outs. But, if I’d stayed in the Settlement, my business is so small that I’d effectively be handing publication over to Google, with whom I cannot compete. I do not want my books published as badly protected or unprotected e-books, and the Settlement makes no guarantees other than that a committee will be set up to consider the DRM issue. The Settlement guarantees me no specific dollar amount of revenues, and it says the Registry will charge me to participate, but no indication of how much. I could end up making nothing, I could end up paying the Registry more than I make. Even the $60/copyright violation is merely an estimate; the actual awards will be based on the number of claims.
In other words, I’m not guaranteed to make a cent from this deal, I may actually lose money, and meanwhile, I _am_ actually publishing at a profit without Google.
Will Google “use my works anyway”? Perhaps; but if they do that on any large scale, they will be lowering their chances of authors and publishers trusting them enough to voluntarily enter into future agreements with Google. And I believe that Google will want such agreements, because the Settlement only covers books published before January 2009. I’m sure Google will eventually want to sell books published later than that.
I’d like to reply specifically to Carol White.
First, opting out of the Google Settlement took very little of my time. I contacted publishing lawyer Ivan Hoffmann, and told him I wanted to opt out. I gave him a list of my books and I assured him I do indeed own the rights to them. For flat fee, he wrote an opt-out letter for me. I took it to the post office with book orders I was mailing out, and I sent it to the Settlement Administrator by certified mail. You can opt out of the entire Settlement using Google’s online form, but Ivan Hoffmann felt it’s legally easier to verify that you sent a certified letter. Google does not acknowledge the submission of their online form.
Now I did spend some hours _reading_ the Settlement document. But, copyright holders need to do that to make an informed decision as to whether to stay in or opt out. Yes, it’s over 300 pages long, but if your business requires you to read it–and I think the businesses of most book copyright owners do require that, and before the opt-out deadline of May 5, 2009–then you read it.
Another issue is this: Every time something happens to reduce book sales, whether it’s Google, the recession or what, I hear micropublishers say, “Oh, we’ll just find ways to market our books better and then sales will be fine.” I’ve owned my publishing company for 15 years. If there were any magic method for increasing sales, I’d be following it, even if there were no Google Settlement and no recession. If I had a sudden influx of money or time for marketing, I’d be spending it, even if there were no Settlement and no recession.
But the fact is, I’ve already spent 15 years fine-tuning my marketing and trying out new methods to see if they were better. I’ve already spent 15 years building my customer base, following the “do 20 minutes of marketing every day” rule, and so on.
Have some of the marketing methods I’ve tried worked for me? Yes. Have I increased my customer base significantly over the years? Yes. Do I sell books and make a profit? Yes.
Is there some new and better method by which I can sell tons more books? No.
Marketing is just plain hard, and there really are limits to the time and money you can spend on it. There is absolutely no guarantee that if something happens to reduce your sales, you can find a new marketing method that returns them to their previous level.
@Dave Walden
If and when Google goes bankrupt, I suspect its assets will be sold, and that the database will be among the assets purchased. Certainly copies of that database will be stored in various institutional libraries.
This is one of the few possible side effects about which I’m not concerned. Now, a change in technology could make the formats obsolete, but that’s inherent in all electronic files. In any case, the printed books that were in the database should still exist, in the main. That’s an ultimate back up, I suppose.
@Walt Shiel
Walt, I certainly empathize with your point. I’m afraid, however, that as a practical matter, I don’t think opting out of the settlement will change Google’s behavior to your books in the slightest.
I’m not suggesting that the Google Settlement is a good thing for small presses. Far from it. I think it has the potential to be devastatingly harmful. I think it is likely to be a classic example of the law of unintended consequences. I’m just not sure I see any practical ways for the small fry of the world to fix the problem.
@Fran,
I hope that you’re right, that another class will arise, or that the violation of the opt-out will eventually have consequences that encourage Google to avoid it. I’m dubious about both, however.
And as for the other powerful entities that oppose this settlement, I wouldn’t hang your hat on them. They’re even more fundamentally opposed to the interests of the small press than Google is. They just want to get a share of what they think Google will get here.
To all:
Nowhere did I say we should treat this as a marketing opportunity, or that it will enhance our revenue. I’m not at all sure that it will be either one.
My point, and it’s my only point, is that we’re staring up at a juggernaut and this settlement may be the only mitigation of the damage that we’re likely to get. And that assessment leaves me feeling just as irate and helpless as any of you.
I’m an overseas publisher but I’m under no illusions that my books are somehow not at risk from Google just because I’m not in the US. I’m also mad as hell like Walt, and despite reading the relevant documents and plenty of commentary on them, I’m still pretty unclear on several points. I guess the complexity of this settlement is intentional.
As I’ve seen written elsewhere, Google gets the right to set the price of our books (or compilations of our books it puts together) and could set it at $1, or even nothing. 63% of that isn’t going to go very far.