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From the President's Desk

The Latest on the Google Settlement: Of a Heroine, A Hearing and Inventing History

by Salley Shannon

The Google settlement, "amounts to making a mockery of Article I of the Constitution," said MaryBeth Peters, the head of the U.S. Copyright Office, during a House Judiciary Committee hearing September 10.

The hearing was meant to be a "Bless you, Google" tent revival. A few members of the Judiciary Committee, however, were not buying the "Google is giving us a treasure-trove of knowledge" business, even though Google did recruit a throng of sight-impaired people to cheer when their representative testified the settlement will provide access to more talking books.

Really, the hearing was prime Congressional theater. Several members also took to the grandstand over, "children in the barrios with all the world's knowledge at their fingertips." Moving image. Who would argue if it were only a library?

Amazon executive Emmett O'Keefe told me before the hearing that when Amazon brought out the Kindle2, the device came with a text-to-voice feature that they thought would be attractive to many people, including the blind. Paul Aiken, executive director of the Authors' Guild, raised a ruckus. He said having that feature breached contracts, because authors normally bargain separately for recorded book rights. So Amazon disabled the text-to-voice feature. Now when you buy some books for the Kindle2, the feature works. With others, it does not. This bit of history was noted during the hearing, putting it on the record.

Apparently, since the settlement is under fire, writers' contractual, recorded-book rights no longer need defending. Authors' Guild has seen the light. Google gets to do text-to-voice. Support Google! Give books to blind people! Pet their nice dogs!

Before the Judiciary hearing and afterward, I met with staff and committee counsel, but ASJA did not get to testify. I sent a letter, however, stating our positions to the committee, and it will be incorporated in the hearing record. (It's on our Google settlement documents page.) Like all the statements we've sent out on this and other matters, the letter was edited and vetted by Russ Wild, Jack El-Hai, Minda Zetlin, Nona Aguilar, and Alexandra Owens. Your board executive committee and executive director have been so generous about dropping what they are doing to read something that needs getting out fast. Many thanks, friends! You're the best!

Here's what made me boil: Reps. Lamar Smith, R-Texas, and Rep. Jackson Lee, D-Texas, both testified to the Amazon VP: "I don't see the problem, since the settlement says anyone can scan books. Why can't you just do what Google did?" Rep. Brad Sherman, D-Calif., went a step farther, adding: "They've taken the initiative and are giving us this wonderful library that will help the world. Why shouldn't they be rewarded?"

Totally ignoring the fact that, to get this "library," ten million books have been scanned "in clear violation of copyright," quoting MaryBeth Peters again. This settlement also will give Google immunity so that it can keep right on scanning. Peters, the Register of Copyrights, is our champion. That we were wronged and the scanning continues right this minute wasn't mentioned by anyone else. Not once.

Committee members were following a script promoted by Google and the Authors' Guild, part of which reads "this settlement is not anti-competitive. Pay no attention to that man behind the curtain! Any company can compete." Paul Aiken of the Authors' Guild also waxed poetic in his testimony, saying the proposed Book Rights Registry is something "we've needed for a long time. I was in Brussels last week and when foreign writers talked about it, I could hear envy in their voices... The Book Rights Registry will become the world's model on how to deal with digital rights."

Well, that might be true one day. I hope so. But if foreign writers admire the settlement as it now stands, they have a funny way of expressing it. The governments of France and Germany have petitioned the court as objectors, saying the settlement violates the Berne convention on international copyright law.

The "anyone could compete" premise is true, theoretically. In reality, it's birdbrained. Google would have the advantage of the opt-out, meaning that almost every book would be available to them, with guaranteed immunity from future suits. New competitors would have to get writers to opt in. That is, they would obey copyright law as it stands. Google also has a long list of many "favored nation" preferences. We writers wouldn't settle for so little money next time. Libraries might be ill-inclined to allow books to be scanned again.

But wait! There's more! The paramount reason the "anyone can compete with Google" premise is nonsensical is that no court would smile on deliberately breaking the law and provoking a suit, in the expectation that the ensuing settlement would set you up in business. It's called "misuse of the judicial process." It comes with hundred-million-dollar fines.

The Amazon VP testifying just kept explaining that to follow in Google's footsteps would be "extraordinarily irresponsible." Sherman interrupted him, exclaiming "the only thing irresponsible is to not give this knowledge [the many books] to the world!" Translation: Stealing a writer's work doesn't matter. Who cares about silly old copyright?

Because many on this committee were involved in previous "orphan works" bills, that issue took up at least 60 percent of the hearing. Rep. Zoe Lofgren, R-Calif., noted, "If Congress had passed the orphan works bill, we wouldn't be in this room today." He said it three times, in fact, as if the problem of orphan works was the reason Google got sued in the first place.

And indeed, that is part of the new way Google and the AG were framing the discussion. "We're solving the problem of orphan books!" These are the same "unmarketable" books that were a "non-issue" before, when we objected to having Google come out owning the rights to all of them. At the hearing, the Google executive said, in response to a question, "The suit came about because of copyright infringement and access [to orphan books]."

No. It was infringement. Just infringement. Remember us writers?

Hey! I could have done a Joe Wilson, and yelled: "You LIE!" I missed an opportunity!

Salley Shannon is the president of ASJA. Contact her at president_at_asja.org