From the Wall Street Journal
To get through the 385 pages of mind-numbing legalese of the Google settlement, it might be better to be Nino Scalia, Bob Bork or David Boies. Preferably all three at once. Absent brain enhancement surgery, understanding this monstrosity by May 5, 2009, is going to be rough.
That's the date by which every author and publisher in America is supposed to decide whether to "opt in," "opt out," or simply "ignore" a vast compulsory licensing scheme for the benefit of Google. Most, about 88%, are expected to "ignore." That's because they know their online display rights have value, and the last thing they want is to be herded like sheep into a giant contract commitment.
After Google began digitizing the University of Michigan library in 2004, the Authors Guild, the Association of American Publishers and a handful of authors and publishers filed a class-action lawsuit for copyright infringement. Last November, those "class representatives" reached an out-of-court settlement with Google that would, if approved by the federal court, permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations, by Google, online. The settlement gives the class-action attorneys $30 million; a new, quasi-judicial bureaucracy called the Book Rights Registry $35 million (more on this later); and $45 million for owners infringed up to now -- about $60 a title. It remains subject to a final fairness hearing, slated for June 11.
No one elected these "class representatives" to represent America's tens of thousands of authors and publishers to convey their digital rights to Google. Nor are the interests of this so-called class identical. There is nothing more individual in the world than a book, an author, a publisher, and the value of a contract. The aging baby boomers now flacking the settlement don't seem to understand that PDF scanning (how Google and everyone else digitizes books) isn't rocket science; it's cheap and easy. Books will be digitized without Google. But the Google settlement sets in amber today's overhyped role of the Internet, ruled by that great and magnificent Oz -- Google.
Sound like hyperbole? Consider this: Under the settlement, every rights-owner in America is supposed to hand over all their private contract data, on every edition of every work they ever wrote -- and every excerpt permission ever granted to others -- at the peril of losing the money Google will be making on their backs. This is a massive burden on everyone in the book industry, making us all, in effect, Google's data-entry slaves. Indeed, in most cases such information about every permission ever granted is unlocatable. It opens a Pandora's box of disputes and mistaken claims about who actually owns what.
Google's erstwhile adversaries are paid off with the aforementioned Book Rights Registry (BRR), which will compete with the U.S. Copyright Office and the federal courts. The BRR expects to read everyone's contracts to say who is owed what of Google's revenues -- net again of all its costs, which are sure to be huge. Our entire dynamic system of individual contract enforcement over time and changing individual proclivities is thus to be exchanged for a forced, immediate squabble over rights, and static databasing, right now, of determinations made by Google.
The Internet was supposed to eliminate middlemen, not pack multiple layers on. The BRR is in fact merely Google's contract negotiation and claims department. As in Hollywood, the settlement deal turns book authors into fully subordinated, last-in-line net residuaries. This reverses the economics of books.
Book publishers today are entitled to a share of the publishing partnership because they shoulder -- not lay off on authors -- all the costs of editing and publication and marketing. The author's net profit share, generally half, in books, is for his creation. The author's share rises against the publisher when the publisher's costs are lower, as in digital. If the author shoulders still more of those costs and burdens, the publisher's share should be reduced again. That doesn't happen with Google.
We already have a good system. It's called the system of private property and free contract, designed for dispersed, autonomous individuals -- not command-and-control centers. The U.S. Constitution grants authors small monopolies in their own copyrights. Author market power is talent-based and individual, not collective. This class action seeks to wipe all this out -- just for Google. But U.S. law does not grant any single publisher monopoly power to herd all of us into its list.
For private gain, the Google parties now seek to destroy the health in the system that individual bargaining preserves. Disputes will be fixed in arbitration with no access to federal courts which have often shown mercy to authors. Arbitrators will be "you sign it you eat it" line-parsing bureaucrats.
Say goodbye to your rights, forever, authors, if this mess goes through.
