From the President's Desk

Publishers Decide It’s OK for Google to Steal our Work

By Minda Zetlin | From the November 2012 Issue

Book authors love publishers. They hire editors who read our manuscripts and work with us to improve them, as well as proofreaders who make sure our books don’t go to press with embarrassing typos. They create colorful covers and print thousands of copies of our work, with our pictures—looking gorgeous—on the back flap. Then they put copies in bookstores, both online and “bricks and mortar,” from coast to coast. They pay us advances, and if our books do well, sometimes even royalties.

Publishers (unless we choose to self-publish) are our fellow travelers in this strange business of putting books into the world and hoping people will pay to read them. But while they may be our partners, our interests and theirs are not the same. Any doubts about this were erased on October 4, 2012, when the American Association of Publishers announced it had settled out of court over Google’s illegal scanning of millions of copyrighted books.

A bit of history, in case you haven’t been following the blow-by-blow. (If you have, feel free to skip ahead.) Beginning in 2005, Google began scanning pretty much every book it could get its hands on. Since it was working with several libraries, that amounted to a lot of books. It’s kept at it, day in and day out for the past seven years, and has scanned 20 million books—so far.

Google owns copyright to none of these books, which makes selling, disseminating, or displaying them illegal. What is it doing with them all? So far, it’s displaying them, in portions, on Google Book Search and raking in revenues for pay-per-click ads that run beside them. It’s arguing that “fair use” (the concept that someone writing, say, a review of a book is allowed to quote passages of that book) makes this display legal. Since fair use has never been defined by the courts, no one knows what it actually means.

But Google wants much more than just to display “snippets” of text on Google Book Search. Even seven years ago, it knew that digital books were the way of the future and it hopes to sell these scanned books through its online store to the millions of users of Android devices. It came within inches of getting that right via two ill-conceived settlements it negotiated with the Authors Guild and the American Association of Publishers (AAP), which had jointly sued Google over the book scanning—a deal that would have given most writers about $60 per scan and put our books under the control of a monopoly dominated by Google and publishers. It also ceded Google sole control of “orphan” books whose copyright owners can’t be found.

The Science Fiction and Fantasy Writers of America, bless them, were the first writers’ group to object. ASJA was the second and after us the floodgates opened and hundreds of groups, individual writers, foreign governments, and even the Department of Justice entered the fray on the anti-settlement side. With the original settlements well and truly dead, the case is proceeding through the courts, at a very slow pace, with Google and its battalion of lawyers fighting fearsomely every inch of the way.

Until October 4, writers had publishers, or at least the members of the AAP, in our corner for this ongoing fight. Now, they’ve abandoned us to our collective fate, and writers alone are left to stand up for the basic principle that the creator of a work has the right to decide what happens to it.

The Authors Guild is suing Google as a representative for the entire class of book authors, but the AAP sued Google merely on its own behalf. That made it legal for AAP to settle separately, and to keep the terms of that settlement secret. While undisclosed settlements are nothing unusual, it’s disturbing here because it seems highly likely that the AAP has sold Google digital rights its members don’t own. Book contracts didn’t cover electronic editions until relatively recently, so any publisher allowing Google to scan its back list is almost certainly violating its contracts with authors, adding its own layer of theft to what Google has already stolen.

What can you do about it? If you’re a book author, search yourself on Google’s online store, now called “Google Play.” If you find any title you authored there, check your contract and see if you sold the publisher electronic rights. If you didn’t, your rights have been violated and you should take action. Feel free to contact me at president@asja.org to find out how. And if your book contract entitles you to a detailed accounting of revenues from your book—ask for one. That may be our only way to get some kind of clue as to the deal the AAP and Google cooked up.

Going forward, pay close attention to digital rights in any book contract you sign. E-books are the future, and they’re not all being sold one by one. Subscription models, such as Amazon Prime, will inevitably cut into sales, so make sure you’re being compensated appropriately.
Meantime, here’s what ASJA is doing: On the first business day after the AAP settlement announcement, ASJA, along with the Science Fiction and Fantasy Writers of America and the National Writers Union, sent a letter to the Justice Department, asking them to investigate. Justice objected to the original settlements on antitrust grounds, and it seems highly likely that the secret settlement violates antitrust just as the public ones did.

Google and the AAP can hide their dealings from us, but not from the federal government. We’re hoping to shine a light on what Google and the publishers would prefer to keep in the dark.

Minda Zetlin

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Minda Zetlin is president of ASJA, a columnist for the Inc. magazine website and author of several books, including The Geek Gap: Why Business and Technology Professionals Don’t Understand Each Other and Why They Need Each Other to Survive (Prometheus Books, 2006), co-authored with her husband, Bill Pfleging. Connect with her on twitter at @MindaZetlin.

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  • Flightlessbird

    The doctrine of fair use was minimized by the Digital Millennium Copyright Act (DMCA) of 1998. Case law demonstrates (not consistently) how it has been applied. Prior to this Act, fair use allowed researchers, teachers, libraries etc. to use copyrighted works without needing the permission of authors. The U.S. Constitution grants monopolies “for limited times” to creators of works as a reward for their efforts and this began as 28 yrs. and was extended and extended via Congressional “interpretation” and the $$ and perks from Disney and RIA lobbyists to what is is today: 99 yrs for corporate copyright holders. The DMCA was enacted just prior to Mickey Mouse entering the public domain. The reason creators’ monopolies (copyrights) are limited is so that the work (Disney was certainly able to capitalize on Rudyard Kipling’s The Jungle Book entering the public domain under the old Copyright Act copyright terms) can benefit society (is free to all). Indeed, wouldn’t it be a pain to need to actually locate every, single author of books or passages of poems when teaching school? As far as what Google is doing, it is capitalizing on the ignorance of judges regarding digital form versus print form. There is no difference, save for the determination that there is a different expectation of privacy for content uploaded to the Internet by its owner – the courts have decided that there is none. So, one would assume that ALL digital content on the Internet is fair game since uploading it to the Internet is considered by the courts to be tantamount to broadcasting to a public forum, plastering photos along the Interstate, and yelling secrets from the mountain tops. Still, if the copyright holder’s permission was never explicitly granted for content to be uploaded to the Internet, then whomever either gave that permission or scanned that content without it is guilty of copyright infringement merely particularly if the content was used for financial gain. Fair use has always been limited to research, education, and libraries – endeavors that benefit society or the public good. Libraries supposedly pay for their books (copyright holder gets paid) and then lend their copies to readers. They did this with videos as well. So, it seems to me that Google is trying to set up a library for the world (except China) and has paid for the content it has scanned at some point. Still, law dictates that I cannot make copies of my legally purchased book/video/music CD and sell it. If Google will use the copyrighted content as a library, then it cannot also be an endeavor that yields financial gain for Google.