The AE Monthly, a newsletter put out by the Americana Exchange, is one of a few on-line publications I read religiously.
Most of the time, I find the articles interesting and educational, but just this once, I’m a little disappointed with the biased opinion expressed in the article. I would leave a comment on line, but I can’t find a way to do that without subscribing to one of their packages, so I’ll vent here.
The article is entitled Google Books Hearing Postponed. Go ahead and read it. I’ll wait.
The basics are that Google, in its desire to make all the knowledge of the world available on line in its own databases, has decided that the importance of its mission outweighs its need to obey US copyright law.
Google is having trouble with Title 17 of the US code, specifically Chapter 3, Duration of Copyright. In a nutshell, works created after January 1, 1978 are protected for the life of the author plus 70 years. For works created before January 1, 1978, a number of different factors come into play, all of which are summarized quite nicely on a page maintained by Cornell University: Copyright Term and the Public Domain in the United States. The bottom line is that the only works securely in the public domain are those published before 1923.
As Google (and AE Monthly) see it, there are plenty of works published after 1923 which are out of print, and therefore unavailable to people who might benefit from the knowledge contained therein. What’s more, many of those books are what Google characterizes as “orphaned works,” meaning that they can’t find the author to ask for permission.
Not that they seem to try all that hard. AE Monthly received a “letter to the editor” from a certain William J. Chamberlin, who I believe to be the author of Catalogue of English Bible Translations: A Classified Bibliography of Versions and Editions Including Books, Parts, and Old and New Testament Apocrypha and Approcryphal Works (Westport, CT: Greenwood Press, 1991). He states that his still in-print book, currently priced near $300 a copy, was being offered 50 pages at a time by Google, and has somehow been made available on the Kindle as well, all without his knowledge or permission. (Or, by the way, any payment to him.)
While that appears to be a slightly different issue than the older, out of print works, it does go to show that Google, whatever its stated intentions may be, apparently feels author’s rights are secondary to its desire to be the online everything source.
Fortunately (more or less) for authors, who may not have much clout individually, the Association of American Publishers is larger, more organized, and can afford good lawyers. They sued Google and were quickly followed by the Author’s Guild, which represents more than 8,000 authors. The Author’s Guild has provided an extensive list of the pertinent documents and key dates in the suit and subsequent settlement.
This settlement includes a description of revenue models that include: print on demand (POD), file downloads, advertising sales and consumer subscriptions. Revenues would be split 33% to Google and 67% to a fund that might someday make payouts to the rights holders. Authors and their representatives were apparently opted in automatically, and were required to opt out if they didn’t want to be part of the scheme.
It is amazing to me that Google, The Association of American Publishers, and the Author’s Guild think an agreement that divvies up revenues from this commercial venture (revenues that rightly belong to authors who never gave their consent) will trump copyright law.
Enter Judge Denny Chin, the federal judge in New York who struck down the settlement. His opinion is 48 pages long, but well worth reading. He cites a number of objections to the agreement, but the primary one seems to be the same one that’s bothered me all along. A civil contract cannot trump congressional law to removing the rights of individual authors. The judge suggested that the parties renegotiate and come back with a scheme that required opt in rather than opt out.
To which reasonable and lawful request the AE Monthly says: The authors and publishers weren’t making any money off of these old books anyway, the objectors for the most part are happy to kill any deal, and this is hardly the biggest kettle of fish on Google’s table. The only real losers will be the public. Sorry, loser.
AE Monthly, I would like to point out that there are a few thousand used and out of print booksellers that would be happy to make those books available to the public the old fashioned, legal way: by finding them, preserving them, and offering them for sale to our customers. (Who would probably rather hold a “real” book in their hands anyway.)