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From the President's Desk Why ASJA Is opposing the Google settlement by Salley Shannon Ed. Note: See the addenda at the end of this report. I hate it that we're on one side and the Authors Guild is on the other. By now you know that your ASJA board opposes the proposed settlement in Authors Guild v. Google. We don't think the whole settlement plan is bad, just that there is enough peril in it for writers and for reader-citizens that we had to act. So we will ask the court to direct that changes be made in certain sections of the settlement plan. What you may not know is that the ASJA board is a pretty conservative, "Show me—I'm from Missouri" kind of group. Yet even with the Ghost of Tasini floating over us, and knowing the decision would outrage some writer friends and mystify others, the board voted unanimously to oppose this settlement. Then it voted unanimously again to join a coalition of groups in opposition. Disclosure: I'm your president. I'm also an Authors Guild member and no sworn enemy to Google. I admire them and use their products, as do many of you. For me, the decision to oppose came down to this: If I do nothing, despite my misgivings about what is in this plan, and even more misgivings about what it leaves out, will I be able to look writers in the eye 10 years from now? Because the Google settlement is going to reshape our industry. Some background: In the past, when there has been a huge cause on which legal action seemed necessary, writer groups have banded together to file suit. This time, the largest among us, the Authors Guild, acted alone. It gets to do that. No criticism implied. Once the Authors Guild decided to settle, that meant Google never has to admit it did anything wrong, despite having scanned 7 million books without getting permission from copyright holders. Many copyright issues, like how much of a book can be copied under the "fair use" provision, still are floating around, unresolved. So probably, anybody who tries to compete with Google will be adding a verse to this song. It will be sued, have to settle ... Cue the chorus. Publishers were at the settlement table because the American Association of Publishers, acting with five major book houses, also had filed suit against Google for scanning books without permission. Since the two cases were about the same issue, the court joined them. The settlement deal will cost Google $125 million. In 2008, Google made $4.2 billion on revenues of almost $22 billion. Google is supposed to pay $34.5 million to set up a Book Rights Registry, which will then parcel out some $45 million to compensate writers for having their books scanned, sans permission, for Google's Book Search. Individual writers will get between $60 and $300 per item, and let me be frank. If the court listens to what ASJA and others will be saying and directs going back to the table, your money could be longer in coming. On the other hand, even if the registry got set up tomorrow, it wouldn't be sending out your check next Thursday. The law firm that sued on behalf of the Authors Guild gets $30 million. All told, attorneys will collect $45.5 million, more than the amount awarded writers. (I am shocked. Shocked!) The settlement also sets parameters for the sale of digital books and gives Google an exclusive license to sell orphan books—those that are still in copyright, but the rights holders haven't been found. The Authors Guild pooh-poohs any objection to giving Google an exclusive license to sell orphan books, noting the registry gets the lion's share of any profits and unclaimed money eventually goes to a charity. (Named, you guessed it, by the registry.) "Google is essentially being accused of cornering the market on the unmarketable," says a former AG president on their website. In other words, these orphan books are worthless. It's an odd argument, and it made me start thinking about Kool-aid flavors. If the books are worthless, why are libraries keeping them around, and why would it be an advantage to have them available to scholars, or anyone else who wants a look? Why is Google spending roughly $10 per book to digitize them? The answer is plain. Corporations act in the interests of their shareholders, and shareholders demand profits, not altruism. Despite the "don't be evil" motto, do we really think Google has digitized 7 million books, the preponderance of them orphan works, expecting scarcely any return? Ever? (Wait until somebody wants to make a movie based on an orphan book.) Frankly, I'm skeptical. But access to orphan books is a thorny problem, and this solution may be as good as any other. So we will leave Google in the briar patch. Here is what ASJA will ask the court to do:
We love the idea of a huge, searchable, digital library of the world's books. We love the thought of getting paid when people download all or parts of our books. But, every day, we see the ads that pop up when we do a Google search. Google's algorithms for interpreting online activity are scary enough already, thanks! Time to draw boundaries before we let Google know even more about us. We are writers. But first, we are book-lovers and citizens. This settlement cries out for limits on the ways Google can mine the data collected on who is browsing, reading and buying books. It also needs language forbidding censorship. If we have learned anything in the last year, isn't it that we must not expect corporations to regulate themselves? Remember that Ghost of Tasini I mentioned at the beginning? Several years back, ASJA and other writer groups, including the Authors Guild, joined together in the lawsuit Tasini et al versus The New York Times, which was about the illegal use of copyrighted articles. The Tasini settlement fell apart when a small, dissident group of writers challenged it. It was a heartbreaking loss. At the time, most of us felt it was a classic example of throwing out the good in search of the perfect. Because of what happened in Tasini, your board knew charges of "spoiler" and "sour grapes" would be flung at us if we decided to oppose. The complexity of the settlement plan made the board's decision difficult. The Tasini history and that we would be disagreeing with friends made it painful. The Google settlement is not Tasini revisited. ASJA does not stand alone. NWU, librarians, citizen groups, activists of all stripes, and yes, corporate rivals to Google, agree there are flaws that need mending. Still, as former ASJA president Jim Morrison warned me, once we start walking down this road, there is no going back. He is right. To be honest, I asked myself whether I could be brave enough and tough enough to lead ASJA through this, if the board voted to oppose. I'm a Southern girl, raised to duck discord and continually smooth the waters. I don't relish having people angry with me. When it happens, I'm going to slip away and do a Google search for "weight loss" or "dog nutrition." Any blessed thing. I will watch as the ads click in, offering me ways to drop 20 pounds or buy cheap dog biscuits. Then I will walk back to my place at the head of the line. Your board made the right decision. Addenda: Because the above was written before the Justice Department and then the judge came back with responses, Salley has added the following to bring things more up-to-date: First, a correction. I should have drawn a distinction between the initial Tasini suit, which was about the use of articles in databases. The court ruled such use is copyright infringement. After that, there were three separate suits against databases, which were joined into In re Literary Works. It was the settlement to that suit which fell apart in a most heartbreaking manner. We tend to lump them all together by saying "Tasini," but still, I should have made the distinction. Update: Since this president's letter was written, something like 800 letters have poured into the court over the settlement, most of them in opposition. Objectors included foreign governments and associations representing foreign writers, libraries, civil liberties groups, writer organizations (including ASJA), corporations and individuals. On Sept. 18, 2009, the U.S. Department of Justice wrote Judge Denny Chin, saying the settlement was so legally flawed he should not approve it. I am glad to say that many of the same points raised by the DOJ already had been noted by Kellogg, Huber, ASJA's pro bono attorneys. Justice attorneys offered to work with the parties to craft another agreement -- presumably, one that won't break or skirt some 28 different points of law listed in their 32-page opinion. Shortly thereafter, the Authors Guild, the publishers and Google wrote the court saying they were thowing in the towel. They will take another cut. Judge Chin has agreed the settlement is toast. He expects the parties in his courtroom on Oct. 7 with a schedule for crafting a new settlement in hand. This is a month earlier than the time they requested. He may also lay down some rules of his own, then. Only one thing is certain right now: you'll be hearing about Settlement 2, the Sequel. Salley Shannon is the president of ASJA. Contact her at president_@_asja.org
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