Dogs take a candid interest in the smells of other dogs’ pee, and one day a couple of years ago, when I was walking our late lab-shepherd mix, we met a hound who ignored us in order to focus on the scents left on a tree. The hound’s owner apologized by saying, “He’s checking his email.”
Yesterday I heard another such canine-internet metaphor. In anticipation of meeting an elderly dog on the corner, our puppy collapsed on the sidewalk, as if lying in wait in the tall grass. When the elderly dog reached us, Toby sprang up, but the traditional greeting ritual between dogs—butt sniffing—was one-sided, because the elderly dog, uncurious, just stood stolidly and patiently in place. “This is my indifferent lab,” the dog’s owner explained. “‘You do whatever you want,’ he’s saying. ‘You go ahead and Google me, but I’m just going to stand here.'”
Sometime on Friday night, the New York Times reports, Amazon deactivated the Buy Now buttons on its website for all books published by the Macmillan group, including such imprints as Farrar Straus & Giroux, Henry Holt, and St. Martin’s Press. As of this writing, you cannot buy a new copy of the correspondence of Elizabeth Bishop and Robert Lowell from Amazon, though it’s still available from Barnes & Noble, Powells, and other indie booksellers. The same is true of thousands of other titles.
This is a bit of a stunner. Macmillan and Amazon have been arguing, it transpires, over the pricing of e-books, but Amazon yanked Macmillan’s ink-and-paper as well as its electronic books—bypassing conventional weapons in favor of first-use nuclear.
As a writer with friends who work at Macmillan imprints, my sympathies are with the publisher. To judge by the comments being left at the New York Times article on the conflict, however, quite a few people are siding with Amazon, in many cases because they believe it’s greedy of publishers to demand higher prices for e-books. Greed, no doubt, exists on both sides, living as we do under capitalism, but greed alone doesn’t explain the dispute. Yes, Amazon wants to sell e-books for $9.99 or less, and Macmillan wants Amazon to sell them for $15 or less. But as Macmillan’s CEO John Sargent explains, in a statement released today as an advertisement to the book-industry newsletter Publisher’s Lunch, Amazon and Macmillan aren’t at the moment fighting to see who can make more money on a book sale. They’re fighting to see who can lose more money. This is a very peculiar battle.
And it may only be the beginning. My sense, as a somewhat interested observer, is that the year 2010 is going to see radical change in the way books are sold. The catalyst, I suspect, is this month’s announcement of half a dozen new handheld electronic reading devices. Apple’s Ipad tablet is the most famous, but the Consumer Electronics Show at the beginning of January saw the announcement of the Skiff Reader, Plastic Logic’s Que Pro Reader, Entourage’s Edge, and Spring Design’s Alex. Not all of these are likely to make it to market, but those that do will be competing there with Sony’s Reader, Amazon’s Kindle, and Barnes & Noble’s Nook. Google seems to be planning to sell e-books soon. In other words, a large number of capitalists have been betting, lately, that increasing numbers of people want to read e-books.
Let’s leave to one side, for the duration of this blog post, the question of whether it is wise for our society to spend colossal sums of money replacing an existing technology that is durable, versatile, and aesthetically pleasing. (I will let slip this much: No, I do not care how many trees die. They should be so lucky as to be reincarnated as, say, the poems of Surrey. Ents, do you worst!) Assume, for the sake of argument, that a preponderance of these capitalists will prove lucky in their bets, and that a lot of people are going to buy these devices. That suggests, as I wrote in passing in a recent review of Adrian Johns’s new history of intellectual piracy, that a lot of people will soon be roving the internet in search of free or cheap electronically available texts.
Until recently, books have not suffered from internet-assisted piracy the way that music or film has. That’s mostly because it’s easy to make a digital copy of a CD; you slip it into a slot on the side of your computer and click Import. Making a digital copy of a physical book, on the other hand, is cumbersome, as a book pirate recently confessed to the blog The Millions. At the very least you have to turn all the pages. To do it elegantly, you even have to volunteer your services as a proofreader, which is not very many people’s idea of fun, and I say that as someone who has done his share.
But if publishers themselves are selling digital versions of their books, and all that’s needed to liberate them is a little hacking, the calculus changes. Hacking is fun in a way that proofreading is not. Let us pause here and observe a moment of silence for the death of the idea that book pirates, more literary and therefore more moral than their peers, will somehow prove honorable, stealing from the rich and giving to the poor. To the contrary, the pirate interviewed by the Millions said that he deliberately avoided stealing the works of the most successful authors, because they can afford lawyers. Instead he limits his purloining to the work of less commercial writers, such as John Barth, whom he calls “someone who no longer sells very well, I imagine.” Such nobility! “From those who have nothing, even what they have will be taken away.” If electronic reading devices catch on, the threat of piracy to book publishers—and to authors, at all income levels—is very real.
Of course, large swaths of the publishing industry have not waited for pirates in order to be undone. Since the earliest days of the world wide web, newspapers and magazines have pillaged themselves, giving their articles away for free in pursuit of larger audience share. This is now widely understood to have been a mistake. Newspapers like the Times have many more readers online than they ever had in print, but even with these greater numbers, online ads bring in tiny sums compared to print ads. And online readers pay nothing. In the journalistic world that I happen to inhabit, much of the excitement about Apple’s new device has been driven by a hope that it will offer a chance to press the reset button. People stole MP3s, but they buy ring tones. They downloaded software for free, but they buy apps. Perhaps, publishers hope, people will prove willing to buy newspaper subscriptions on their Apple tablets, even though they’ve never been willing to pay to read them in their desktop browsers. (Long Island’s Newsday recently revealed that three months after putting its website behind a pay wall, only thirty-five people have purchased subscriptions.) Thus a week before Apple announced its tablet, the Times announced that by next year, it will be charging its online readers. Will the new business model work? Will newspapers be saved? Who knows, but there isn’t much to lose by trying. In the weeks before Apple’s announcement, I found myself muttering, in an echo of a recent, very bad movie trailer, “Unleash the Kraken.” We might as well find out what the Kraken will do. At the very least, if it finishes the print media off, we will be spared having to listen to further hectoring sermons from internet triumphalists.
Which reminds me that I’ve strayed from my topic: Amazon. Book publishers, unlike newspaper publishers, still have a lot to lose. About nine months ago, I received an email alert from a friend whose excellent book of nonfiction had just been published and who had discovered, to his dismay, that it was accruing one-star reviews on Amazon, not because readers disliked his book but because they objected that its Kindle price was only a few dollars less than its hardcover price. (The anti-Kindle-price reviews appeared on the webpage of both the Kindle and the hardcover version and figured into his book’s combined star rating.) He was caught in the crossfire of an early skirmish of the war that went nuclear this weekend. Eventually the Kindle price of his book was lowered, though I don’t know who blinked. I remember thinking at the time that the one-star ratings were a bad sign, because they suggested that Amazon had in a way already won the dispute over e-book pricing. Consumers already felt that e-books ought to be no more than ten dollars, and felt it with so much indignation and righteousness that they were willing to punish the very author they wanted to read, if they thought he was charging such sums. (My friend, of course, had no control over the pricing of any of the versions of his book.)
Consumers had come to feel that way largely because Amazon had trained them to, by keeping the prices of nearly all its e-books below ten dollars. Though few consumers understood it then, and probably few still understand it today, Amazon did so by sacrificing heaps and heaps of cash. Most publishers have until now sold their e-books to Amazon for the same wholesale price that they sell their hardcovers—roughly half the hardcover’s list price. It is up to a retailer like Amazon whether to sell the book to consumers at its list price, as printed on the inside front flap, or at a discount. With e-books, Amazon has usually offered a discount so low that it actually loses money. That is, Amazon buys for $12 an e-book whose hardcover list price is $24.95, and then Amazon sells the e-book to its customers for $9.95.
Why would Amazon want to do such a thing? When Amazon first introduced its Kindle reading device, the reception was tepid. But Amazon improved the device in later models, and thanks to its aggressive low pricing on e-books, it now reports that the Kindle and e-books are selling briskly. In other words, with the money that it has lost by discounting e-books, Amazon has bought market share for its e-book reader and for itself as an e-book retailer. To put it still another way, Amazon sped up the American public’s adoption of e-books by unilaterally lowering the American public’s idea of what the natural price of an e-book should be. The outrage of the Amazon customers who punished my friend with one-star reviews, and the outrage of commenters siding with Amazon on the New York Times blog post this weekend about the Macmillan-vs.-Amazon dispute, suggest that it may be too late for publishers like Macmillan to alter that idea.
Newspapers have no one to blame but themselves for having taught the public that they have a right to read newspapers online for free. Publishers, on the other hand, have woken up to the unpleasant discovery that the value of their work is being cheapened in the public mind by a third party: Amazon.
Some consumers have objected that e-books must be cheaper to make than ink-on-paper books. A simple cost breakdown by Money magazine last year, however, suggested that only about 10 percent of a book’s list price goes to printing. But ink-on-paper books have to be shipped, stored, and (when they go unsold) returned, and e-books would be spared these costs, too, as this analysis suggests. Also, according to TBI Research, because e-books are likely to end up with a lower list price after the dust clears, author royalties, calculated as a percentage of the list price, are likely to be lower, too—additional savings! Yay! When all these savings are added up, do you succeed in dropping a list price of $28 to one of $9.95? That’s a big drop. Profit margins at book publishers now are rumored to be no more than 10 percent, where they exist at all. It may not be possible for a single company to publish e-books at that price and also retain the infrastructure necessary to publish ink-on-paper books.
To return to the dispute of the moment: Macmillan has probably been selling its e-books to Amazon at the wholesale price of about $12, and Amazon has been selling them retail for about $10. Macmillan says that it would like to sell its e-books at the wholesale price of about $10.45, and have Amazon sell them for the retail price of $14.95. In other words, Macmillan was offering to earn $2 less per e-book. Amazon, however, insisted that it would prefer to take a $2 loss on each e-book, instead, and became so indignant over the matter that it has now ceased selling any Macmillan titles, print or electronic. Macmillan’s proposal is known as the “agency model” for e-book pricing, and the company probably only dared attempt it because Apple has promised that it will sell e-books for its new tablet on exactly those terms. (Amazon has said that they’re willing to accept the agency model, starting in June, but only if an e-book’s list price does not exceed $9.99.)
As I said at the beginning, my sympathies in this dispute are with Macmillan. Why shouldn’t a book publisher be able to exercise some control over their product’s price? Apple, to choose a wild example, rigidly controls the prices at which retailers may sell its products, and as Paul Collins noted in 2007, the legal barriers to publishers’ exercise of such control no longer exist. Here, alas, is where the pirates come in again. Pirates don’t bother when legal copies are available cheaply and easily. What’s perhaps most breathtaking about the Amazon-Macmillan dispute is how little, finally, is at stake: should the highest price of an e-book be $9.95 or $14.95? No one dreams any more that it’s going to be $28. What’s being fought over is control, and the reason control is being fought over so viciously is that the only way such massive cost savings are going to be achieved is by consolidation—by collapsing a few of the intermediary steps somewhere between the creation of a book and the reading of it. Will you some day download your e-books directly from Farrar, Strauss & Giroux’s website? Will Amazon some day be the publisher of Jonathan Franzen’s novels? Some future between these two outcomes is more likely to happen, but precisely where the division will fall remains to be seen. Authors, in the meantime, had better ask their agents to negotiate their e-book royalties very carefully, seeing as how, while the titans rage, the financial analysts have already factored into their bottom lines the expectation that someone else will be eating our slice of the pie.
James Cameron’s 3-D movie Avatar gave me a four-hour headache. Probably the headache was caused by a combination of the 3-D effect, a seat near the front and at the far edge of the theater, the way the 3-D glasses skewed my plain old glasses beneath, and the dark in which I biked home afterward, my bike light having been stolen while I was in the theater. But I can’t help but also attribute the headache to the movie’s moral corruptness.
It’s a finished corruptness. The easiest way I can think of to describe it is by comparison with The Matrix, a movie which is merely disingenuous, and to some extent struggling with its disingenuousness. The moral lesson that The Matrix purports to offer is that the glossy magic of life inside a simulation distracts from painful truth. But the moral problem faced by the Matrix is that this lesson is betrayed by the fun that the movie has in playing inside the simulation. A viewer enjoys the scenes of jumping over buildings, and of freezing explosions and fistfights in midair and then rotoscoping through them. In fact, the viewer enjoys them much more than the scenes of what, within the conceit of the movie, is considered reality. There may be a brief yucky thrill to learning that in reality people are grown in pods so their energy can be harvested by robots, but as a matter of aesthetics, reality in The Matrix turns out to be drab and constricted by gravity and other laws of physics. The closing sequence, where Neo (Keanu Reeves) plugs back in to the matrix and runs a sort of special-effects victory lap, makes no sense, in terms of the moral victory he is supposed to have won. If he has really joined the blue-pill team, he ought to be sitting down to another bowl of bacterial gruel with his ragged, unshowered friends, and recommitting himself to the struggle. Instead he’s leaping around in a Prada suit. So the viewer departs from the movie with a slightly queasy feeling, a suspicion that visual pleasures aren’t to be trusted. That queasiness is the trace of the movie’s attenuated honesty.
And such queasiness and honesty are completely absent from Avatar. Some might protest: But what about Avatar’s anti-imperialism and anti-corporate attitudinizing? They’re red herrings, in my opinion, planted by Cameron with the cynical intention of distracting the viewer from the movie’s more serious ideological work: convincing you to love your simulation—convincing you to surrender your queasiness. The audacity of Cameron’s movie is to make believe that the artificial world of computer-generated graphics offers a truer realm of nature than our own. The compromised, damaged world we live in—the one with wars, wounds, and price-benefit calculations—can and should be abandoned. All you need is a big heart, like Jake Sully (Sam Worthington), the movie’s war-veteran hero, and the luck of being given a chance to fall in love.
In Cameron’s movie, Sully joins a corporate mission to extract a valuable mineral from a distant planet, Pandora, whose ten-foot-tall blue-skinned aborigines, who call themselves the Na’vi, are uninterested in cooperating with their planet’s exploitation. In order to talk to the Na’vi, and win their hearts and minds, corporation-funded scientists have grown adult-size hybrid human-Na’vi bodies, which humans can remotely operate by lying down inside a pod—a coffin-shaped pod, not unlike the pod where Neo wakes up to discover he’s been soaking his whole life in soup. But whereas Neo jacks into a simulation, Sully jacks into to a new, improved nature, and Cameron musters the mythologies of Henry D. Thoreau, James Fenimore Cooper, and James Lovelace in order to convince. Or anyway the mythologies of The Lorax and The Lion King. The Na’vi respect the balance of nature. They commune with a deist-ecological world-spirit.
Or so the movie would have you believe. Of course you don’t really believe it. You know objectively that you’re watching a series of highly skilled, highly labor-intensive computer simulations. But if you agree to suspend disbelief, then you agree to try to feel that Pandora is a second, improved nature, and that the Na’vi are “digital natives,” to repurpose in a literal way a phrase that depends on the same piece of ideological deception. For on Pandora, all the creatures have been equipped by a benevolent nature with USB ports in their ponytails. When Sully, inhabiting his Na’vi body, first discovers his, the curmudgeonly lead scientist played by Sigourney Weaver snaps at him, “Don’t play with that, you’ll go blind.” This is a little startling. The organ in question looks sort of like flower pistils wriggling out of the hairy end of a tail. But we gradually learn that it isn’t his reproductive organ, which for better or worse we never see. It’s for making “the bond” with various other species on Pandora. In order to ride a horse-like creature, for instance, Sully is instructed to first connect his ponytail-USB port to the horse’s. Same with various species of flying dragon. And if you want to connect to the Na’vi ancestors, you plug your ponytail into the willow-tree-esque tendrils of the Tree of Life. In other words, on Cameron’s Pandora, the animals cavort with one another much like the peripherals on his desk, plugging and playing at will, and the afterlife is more or less equivalent to cloud computing. Once you upload yourself, you don’t really have to worry about crashing your hard drive. Your soul is safe in Google Docs. In a climactic scene, rings of natives chant and sway, ecstatically connected, while the protagonists in the center plug into the glowing tree, and I muttered silently to myself, The church of Facebook. You too can be reborn there.
Why does the digital nativity bother me so much? I think the answer has something to do with the smug anti-corporate plot. In reality—in the reality outside the movie—the Na’vi, too, are a product of corporate America and are creatures of technology, not nature. Now there’s nothing wrong with technology per se, and there’s nothing wrong with fantasy, either. But Avatar claims that there is something wrong with technology, and that the Na’vi of Pandora somehow represent opposition to it. That’s rank mystification, and one has to wonder about motive. I think there are aspects of being human that a movie like Avatar wants to collude with its viewers in denying—aspects of need and of unfixable brokenness. There are traces of this denial in the movie. We never see the Na’vi eating, for instance, except when the transcarnated Sully briefly samples a significantly pomegranate-like fruit. Yet they have high, sharp canines. Vampire-like canines. Indeed, Sully turns into a Na’vi after he lies down in his coffin-pod. Once he takes to his avatar, even his human body has to be coaxed to eat. Like a vampire’s, Sully’s cycles of waking and sleeping become deeply confused. In the unconscious of the movie, I would submit, all the Na’vi are avatars. That is, they are all digital representations of humans, lying elsewhere in coffin pods. And they are all vampires. They have preternatural force and speed, wake when others sleep, and feed on the life-force of mere humans—the humans lying in the pods, as a matter of fact. This, I think, is the strange lure of the movie: Wouldn’t you like to be the vampire of yourself? Wouldn’t you like to live in an alternate reality, at the cost of consuming yourself? Vampires have a culture, a community, feelings. They don’t have bodies, but they have superbodies. The only glitch is this residue offstage, rotting and half-buried, that you won’t ever be able separate from altogether—until, at last, you can.
Because the community of authors seem to be greeting the advent of the Google Books Settlement with uncharacteristic silence, here's the letter of objection I recently sent to the clerk of the court settling the case. You can only object if you opt in to the settlement, so this means I'm in. (The deadline for opting out or for objecting to the settlement is May 5.) The letter incorporates ideas that I laid out in earlier posts; apologies for the repetition. I'm sure I've mangled a few legal details along the way; the only thing I'm confident of is that the settlement will have important effects that have not been foreseen by anyone, let alone me.
Brooklyn, NY 11215
28 March 2009
Office of the Clerk, J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007
Dear Mr. McMahon:
As an author whose works appear in the Google Book Search database, I am writing to object to some of the provisions in the proposed Google Books Settlement. The concerns that motivate my objections came to me as I was navigating the settlement website, and broadly speaking, my objections fall into two categories. The first consists of defects in the settlement that seem to be caused by a mismatch between legal thinking, which is abstract and precise, and the diffuse and sometimes sloppy way that information is actually managed online. I've grouped these objections below under the heading "Practical objections." The second category is caused by the disparity between author's rights as legally defined and the influence and persuasive power practically available to authors heretofore. I’ve grouped these under the heading "Moral rights." There's some overlap between the two categories.
A. Practical objections.
1. I object to the restriction of the settlement to books registered with the U.S. Copyright Office.
According to the Google Books Settlement list of Frequently Asked Questions, “The requirement that United States works must be registered with the U.S. Copyright Office in order to be covered by the Settlement was included in the Settlement in order to comply with a decision of a U.S. court.” Perhaps, then, it’s a provision that the two parties felt they needed to comply with, but that your court will be able to set aside. I hope so. Until this settlement was proposed, it was unnecessary to register one's work with the U.S. Copyright Office in order to own copyright in it. If a copyright was infringed, an author could sue provided he was able to prove that the work in question was his and that he had not sold the rights to it. As a preliminary to a suit, an author did have to file a copyright claim with the Copyright Office, but it was not necessary to file this claim upon publication or for unpublished works in order to deter infringement. If approved, therefore, this settlement would have the practical effect of retroactively adding a bureaucratic requirement in order to secure ownership of copyright.
A personal example might explain the dilemma. Searching the Google Books database, I found a citation of a thesis I wrote as an undergraduate and deposited, as a requirement for my degree, in my college library. I never registered my thesis with the U.S. Copyright Office, because I never expected it to be published. Nonetheless I believed I had copyright in it and would have the power to decide whether it was to be published. As far as I can tell, Google has not yet digitized it, but by the terms of this settlement, the company is only restrained from digitizing it by its wish to maintain good will in the marketplace. By a common-sense definition, my undergraduate thesis is a "book"—it is bound, there are multiple copies (though only two, I’m pretty sure, in all the world), and it is publicly available (to anyone willing to trek to my college library).
Legal precedent would require me to register my undergraduate thesis with the Copyright Office in order to protect it. But I would argue that the sheer volume of Google's proposed encroachments ought to shift such a bureaucratic burden away from authors and onto Google. In other words, I believe that as a practical matter the courts should waive the formal requirement of copyright registration and offer the protections in the settlement to any book that Google finds on a library shelf.
2. I object to the lack of guidance in the instructions on the settlement website as to how authors should claim a book or an insert that appears several times in Google’s database.
By digitizing the holdings of many libraries, Google has inadvertently scanned a number of works several times. Sometimes the Google database treats the multiple digitizations as belonging to the same underlying work; sometimes it doesn’t. (It almost never knows when an insert has been reprinted.) Should an author claim every version of his work, so as to be sure that he protects his rights in every instance? Or should he only claim one version of each work, so as to avoid seeming to ask for settlement payments he doesn't deserve? As it stands, there is no way for an author to inform Google that it has digitized multiple copies of one work and that the author wants to make a single claim covering all such copies.
This is not merely a bureaucratic flaw. Under some of the ways that Google proposes to make money off of digitized books, different digital versions of a work would correspond to different revenue streams. If I were to get a share of the revenue only from one of several digitized versions of my work, I would be short-changed. I think this is a problem that could be easily remedied if Google were to modify its online claim form.
3. I object to the failure to share future revenue streams with the authors of inserts.
Google has offered to make one-time cash payments to authors of books and inserts for the infringements of copyright it has made by digitizing works and for the right to sell digitizations of their works to institutional subscribers. However, it also proposes to make money off of these digitizations in other ways—perhaps by placing advertisements next to search results or by selling downloads of digitized books. Google proposes to share these alternative revenues with the authors of whole books, but according to schedule C of the settlement agreement, it is not planning to share these profits with the authors of inserts. I object to this as grossly unfair. Why should the author of a novel be entitled to a class of compensation that an author of short stories is denied? In the case of an anthology, a book consists entirely of inserts, and Google would apparently be entitled to keep for itself all such revenues.
Though this seems to me a matter of simple fairness, I have classed it as a practical matter because I think it's the sort of problem whose resolution looks cumbersome to a legal mind but that would in practice be quite easy to remedy with a modification of the database procedures.
4. I object to the failure of the agreement to cover periodicals.
Again this seems to me a matter of simple fairness, but I'm classing it as a practical objection because it seems to me that the distinction between a book and a magazine is much more perspicuous to a lawyer than it is to the scanners in operation at Google. As a practical matter, the Google Books Database does not often distinguish between periodicals and books, especially with older periodicals that are no longer publishing. As researchers who use the Google Books database know to their dismay, periodicals are the database’s Achilles heel; in many cases, older volumes of a bound periodical are treated as if they were a series of books with the same title, and volume numbers and year of publication are rarely included in the metadata.
But my concern here is not as a researcher but as an author to maintain his rights. I have written much more for magazines than for books, and over a much longer period of time, and Google seems to have digitized a number of these works, sometimes for magazines that are defunct and no longer around for Google to negotiate with. I feel that I ought to be able to assert control over and be compensated for Google’s use of all these writings, and if they are excluded from the settlement, it will be an opportunity missed.
B. Moral rights
The idea of moral rights is an attempt to address the fact that works of art are not like, say, eggs or lumps of coal. The creator of a work of art cares about what happens to it, even after he's sold the right to publish it or display it or even own it, in a way that a keeper of chickens does not care about the fate of eggs, or a miner about the fate of coal. Unlike monetary rights, the moral rights in a work of art cannot be transferred. I understand that American law does not protect authors' moral rights. However, in the community of American publishing, these rights have nonetheless been to some extent respected, because a publisher who fails to respect them is considered scurrilous and loses the good will of the community of authors.
Google has introduced itself into the publishing world in a new way. Unlike other publishers, it is not in the business of signing up new authors but is exclusively in the business of repackaging works that have been published by others. It is therefore less subject to direct moral suasion by authors, and this settlement may be one of the few occasions when authors have the power to exercise their moral force with Google. I believe it would be appropriate for authors to insist that Google recognize explicitly some of authors’ moral rights.
1. I object to the failure of the settlement to allow an author to restrict display and redistribution of creative work even if he signed a "work-for-hire" contract with his original publisher.
In the case of a poem, a work of fiction, or a memoir, I believe that an author retains effective control over republication of a work, even if he originally signed a work-for-hire contract.
Again, a personal example may clarify the issues. A decade ago, a short story of mine was published in an anthology now out of print. I'm happy it's out of print, and I'd like to keep it that way, but when I searched for my name in the Google Books database, a "snippet view" of the story popped up and panicked me. I could not remember whether I had signed a work-for-hire contract for it. After subsequent research, I discovered that I had not signed a work-for-hire contract and that I do retain all legal control over the copyright. But what if I had signed one? Would I really have no control over my short story? Before the advent of Google Books, a traditional publisher might have been able to buy the legal right to reprint my story but I doubt that very many publishers would dare republish it over my objections. If any tried to, I would call foul, alerting my friends in the community of authors and asking my agent to apply pressure. Please note that I'm not claiming that I could win money for a reprinting even if I'd signed a work-for-hire contract. I'm claiming that over creative work, I retain an effective veto over republication, especially if the work has subsequently fallen out of print, no matter what kind of contract I originally signed. I believe the settlement should make some kind of provision for a veto based on moral rights, to respect an author's wish to decide which of his works he would like to be judged by in the future.
A side matter: On the settlement website as it is operational today, 28 March 2009, when an author views the details of an insert that he has claimed, the "Display Uses Authorized" button stays clicked when he saves his changes, but the "Display Uses Not Authorized" button does not. The anomaly needs to be fixed.
2. I object to the failure of the settlement to treat the creator of a "work-for-hire" as the copyright holder when the purchaser of the work-for-hire is defunct and no subsequent owner of the rights comes forward.
Publishers go out of business, and sometimes they take their rights with them. The Google Books Settlement exists to remedy exactly this problem. I believe that if a publisher doesn't sell his copyrights before expiring, the rights effectively revert to the creator, even if that creator signed a work-for-hire contract. This may be more a matter of jeopardy than of strict accounting. In other words, if a traditional publisher were to try to republish such a work without compensating the original creator, he'd be risking a lawsuit. The Google Books Settlement, however, excludes books written as works-for-hire and therefore does not make Google accountable to such creators. As a practical matter, such books will probably be treated by Google as if they were non-work-for-hire books whose rights holders had not come forward.
My personal concern here is with translation. Most of my translation work was done as work-for-hire, and in at least one case, the publisher is now extinct. Who now owns the rights to those translations? I’d argue that I have a stronger claim on them than Google does. (Of course, if it transpires that the publisher before closing shop donated the rights elsewhere, then the donee has a stronger claim than either of us.) I suggest that Google modify its claim form to allow translators and other work-for-hire creators to state the nature of their contribution in a work and that Google compensate them (though perhaps not at the same rate as full-on authors) if no other claimants come forward.
I hope these objections are useful to you in deciding a final settlement, and I appreciate your attention to them.