Why not ask for more?

A couple of days ago, in a successful attempt to sabotage my own efforts to meet a deadline, I decided to look into the Google Book Settlement. The settlement is an agreement, hammered out last fall between Google and the Authors Guild, about how Google will share with authors some of the money it hopes to make from its digitization of books in copyright. The agreement itself is very long (you can download it here) and rather complicated. It isn't set in stone quite yet, but the cement is hardening. In order to opt out, you have to notify the settlement administrator by 5 May 2009. You can also stay in the settlement but object to some of its terms, if you make your objections by 5 May 2009. That's only a few months away, so it's not too early to start forming an opinion.

I haven't yet read the agreement all the way through. I didn't think I was going to need to, because I have warm, fuzzy feelings both about Google and the Authors Guild. Also, the site that the settlement administrator has set up for authors to claim their work looks streamlined and friendly and is in fact very easy to use. But now that I've used it, I have some questions, and I'm not sure how to answer them.

For one thing, I'm pretty sure that I filled out the online claims form "wrong," but I felt that I had little choice if I wanted to protect my rights. Then again, I may not have filled them out "wrong"; I'm not sure. Here are some of the dilemmas I found myself facing.

First, under the terms of the settlement, I allegedly don't have rights to my published work unless it was registered with the U.S. Copyright Office. The settlement's fine print claims that this is in conformity with a court decision. I don't think this fine print matters much in my case, because I suspect that most of my published work was copyrighted on my behalf by my publishers, but if it did matter, it would be more than a little enraging. When I started life as a writer, the law of the land rendered it unnecessary to register one's work with the U.S. Copyright Office in order to own copyright in it. In fact, the consensus was that only fussbudgets bothered to. Copyright of one's expression was a common-law claim that didn't need bureaucratic imprimatur; if challenged, you only needed to be able to prove that you and no one else had written the words in question. Listed in Google's database, though not yet digitized, is my undergraduate thesis on Nelson Algren. I know I never registered the copyright. I'm also fairly sure that there are only two surviving copies of it, one on my bookshelf here at home and another in the bowels of Widener Library at Harvard. But it's nonetheless distressing to imagine that if Google were to digitize it, I might not be able to control what happened to it, or make money off it if suddenly a great number of people wanted to know what I thought about Chicago realism when I was twenty. I've also never registered the copyright to any of my magazine articles, ever, but I've felt confident until this week that I owned copyright in them nonetheless, and continued to own copyright when they were reprinted in books, and would not lose that copyright if someone scanned and uploaded it.

Another problem is the settlement's division of the literary world into books and "inserts." An "insert," in the terms of the settlement, is a part of a book that an author owns a right to. For example, the introduction and notes to the Modern Library edition of Royall Tyler's Algerine Captive are copyrighted in my name, so they're my "inserts" in that edition. Since the book is still in print, I told Google that Modern Library still has the rights, and I presume this means the Modern Library will get the lump-sum cash payment for its digitization, not me. But an article that I wrote on Milan Kundera for the magazine Lingua Franca was reprinted in the anthology Quick Studies, which is now out of print, so presumably I will get some money off of that. Not as much as I think I deserve, though. Google is offering to reimburse authors in several ways: first through lump-sum payments for digitization, and later through revenue sharing, based on the money Google makes by selling subscriptions to its database to libraries and colleges, by placing ads on webpages that display the digitized material, and perhaps by selling downloads of books otherwise out of print. As an insert, my old Lingua Franca article will bring me a $15 lump-sum payment and later, perhaps, a $50 payment for inclusion in databases that Google sells to libraries and colleges. But according to Attachment C of the settlement agreement, my insert will bring me nothing from any of Google's other revenue-sharing programs. If Google sells ads next to my Kundera article, or sells someone a download of it, I get zilch. Since Quick Studies is an anthology, it consists entirely of inserts. So who's this revenue going to be shared with? The magazine Lingua Franca, by the way, is defunct. As a writer, I've made far more money off of magazine articles than books at this stage of my career, and I still make money off the reprinting of some of them. It seems to me that excluding "inserts" from substantial revenue sharing is an element of the settlement agreement worth objecting to.

A confusing element of the system: multiple digitized versions. Google's database seems to know that it has scanned both the hardcover and the paperback versions of a short story collection that I helped to translate, Josef Skvorecky's The Tenor Saxophonist's Story. I claimed inserts in both versions, even though the instructions told me not to, because I figured Google would be able to figure out that they were the same book. I claimed both of them for a reason: how else am I to be be sure that Google knows that I have a rights claim (in this case, as a translator, a pretty limited rights claim, but still, something) to both versions? For some reason, Google has scanned two versions of my book American Sympathy, and its database doesn't seem to know they're the same book. Moreover, it also has a reference to what seems to be a free-standing copy of one of my book's chapters, not yet digitized, which I never published separately. I claimed that, too. And I claimed an "insert" in a scholarly anthology that reprints a journal article that overlaps a great deal with one of the book's chapters. I know for a fact that no one else has any right to that insert. Google's instructions say that if an insert reprints material also published in a book, the author should only claim either the book or the insert, but not both. Well, that makes sense as far as the lump payments go. But if Google is later going to sell ads on webpages or sell downloads, it doesn't make sense. The income that Google will be making off my content will be split between the various versions of my work that are in its databases, and I should be able to claim revenue from all versions they hold of everything I've written. (By the way, this book, too, remains in print, so as I understand it, I won't be getting any lump-sum payments for it no matter how I fill out the forms.)

I'll end by saying that this agreement is so complex that it seems destined to have unintended consequences, and that I welcome corrections to any misunderstandings I may have made here. I look forward to learning other writers' reactions to the agreement and the claims process, because my sense is that most of us in the rank and file have yet to weigh in on them.

Comments

[Andrew Shields]

Thanks for this Caleb. I've posted a link to your post and to GBS on my blog. I went and discovered my unpublished doctoral dissertation, as well as quite a few of my translations for art catalogues. (But I did not register the latter because they were "works for hire.")