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Copyright Holders Get Googled

The Authors Guild and the Association of American Publishers have agreed to settle their class-action lawsuit against Google on behalf of copyright owners whose rights Google allegedly violated.

Run-of-the-mill stuff for the American legal system, except for one detail: This settlement would not just correct past copyright violations; it would give Google the right to continue violating copyrights.

I happen to own one of those copyrights, and I am not amused.

The suit started when authors and publishers objected to Google’s practice of scanning books to make them searchable. The scanned books appeared on the results pages for Google searches, allowing users to view short excerpts from books related to their keywords. Google did all of this without the permission of copyright holders. This was at least arguably legal under the law’s “fair use” principle, since Google was not selling the search results and was only reproducing excerpts. But the publishers and authors argued that Google’s practices went beyond fair use.

However, instead of making Google get permission before scanning and distributing copyrighted works, the settlement, which still must be approved by a federal district judge in Manhattan, would give Google even greater leeway. While the settlement requires Google to pay $45 million to copyright holders whose books were scanned before May 5, 2009, after the settlement Google will be permitted to scan and sell the full text of all out-of-print books published before January 5, 2009, unless the copyright holder specifically “turns off” a particular title.

Google would be required to give 63% of the revenue it earns from scanned books to the copyright holders and spend $34.5 million to create and maintain a Book Rights Registry that will allow it to track down copyright holders.

But, if Google is really able to locate and contact the copyright holders of all the books it scans in order to give them their cut of book sales and advertising revenue (which I doubt), then it could just as easily contact them before selling their property. When Google finds a book it wants to scan, it could locate the copyright holder, ask for permission to include the book in its electronic database, and then proceed only when given permission. The settlement doesn’t require this.

This peculiar class-action settlement is typical in one way, however: Plaintiffs attorneys for the Authors Guild would be paid handsomely and up front, to the tune of $30 million. Not bad for negotiating away someone else’s property.

I am the copyright holder of an out-of-print book, Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995). I have never had any dealings with the Authors Guild or the Association of American Publishers. I certainly have never given Google permission to republish and sell my book. Yet these parties seek federal court permission to do exactly that, as long as I don’t happen to find out about their plan and opt out.

This is a misuse of copyright law and an abuse of a class action suit. The right to decide who will sell my book and how is mine alone. How can a court curtail my rights without even giving me notice that they are at issue? The only reason I know about this case is because I read the business pages.

I have good reason to object to Google selling my book. Much of the information in it is outdated. Couples who rely on that information today could make expensive mistakes. I have no objection to copies of the book being sold at used bookstores or circulating at libraries, which is perfectly fine under the copyright law. In those cases, readers have physical evidence of the book’s age, even if they forget to check the copyright date. But if someone finds my book on Google, fails to look at the date, follows my obsolete advice and encounters financial or legal problems as a result, my reputation could be damaged. It is even worse if Google sells my book to that reader today, since a responsible vendor would not even carry such an outdated book without clearly identifying it as old material.

When the book went out of print, I took steps to recover the rights from my publisher. This means I can, if I choose, publish an updated version of the book electronically. If Google scans and distributes the old version, I might find myself competing with my own older work.

The settlement does allow authors to stop Google from selling their works, but only if they give specific instructions to Google. In order to have any choice in the matter, copyright holders must be aware of the settlement, notice that their book has appeared in the database, and be sufficiently knowledgeable to figure out how to turn off the “purchase” feature.

I don’t have to tell you specifically that you can’t sell my car for me. Even if you know that you can get a great price and give me a good share of the profits, you still have to ask me first to see if I have any intention of selling the car and if I want you to be the one to do it. My copyrighted material should be treated no differently.

Google uses a lot of flowery language to describe the agreement. (“We love books at Google, and our fondest dream is that Book Search will evolve into a service that ensures that books, along with their authors and publishers, will flourish for many years into the future.”) The folks at Google love my book so much that they apparently want to steal it, sell it, and wait to see if I object.

U.S. District Judge Denny Chin is scheduled to review the proposed settlement at a hearing on October 7th. The U.S. Copyright Office, acting through the Justice Department, already has expressed concerns, sending Google and the plaintiffs’ lawyers back to their closed-door conference room to try to salvage their agreement, to say nothing of their payday. The original settlement proposal amounts to court-sanctioned abuse of the very authors and publishers on whose behalf the suit was supposedly brought in the first place. Judge Chin should insist on a rewrite.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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One Response to "Copyright Holders Get Googled"

  • Mike Sheldrick
    September 29, 2009 - 12:42 pm

    In re lawyers: Shakespeare was right