This Is My Intellectual Property. There Are Many Like It, But This One Is Mine.

Aug 19, 2009

By Patrick.

Books, Law

Unless I’m dealing with Google.

Google, and the groups suing the company over Google’s past, present, and future efforts to digitize the contents of libraries, are taking the position that books and other creative works of intellectual property are fungible.

Under a proposed class action settlement agreement, authors will be paid a set royalty rate for the digitization of their works, which will then be available to the public through the internet, whether the authors desire it or not. Already published books, under the settlement, will become commodities like fish or dog food or paper.

The problem is that books, by and large, are not fungible:

<Adj.> 1 : being of such a nature that one part or quantity may be replaced by another equal part or quantity in the satisfaction of an obligation <oil, wheat, and lumber are fungible commodities>;
2 : interchangeable;
3 : flexible;

While, as a consumer of books, I’m happy enough for myself that if this settlement goes through I’ll have access to many more than I have now, and for free, I’m deeply concerned about the fairness of this settlement to the authors themselves. I’m sure many will be happy to get a little money they wouldn’t otherwise receive. Others don’t know about the settlement, or don’t care. And still others think they should have the right to control their intellectual property, absolutely.

In the latest objection [to the Google Books class action settlement], Scott E. Gant, an author and partner at Boies Schiller & Flexner, a prominent Washington law firm, plans to file a sweeping opposition to the settlement on Wednesday urging the court to reject it.

“This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent,” Mr. Gant said in an interview. Google and its partners are “trying to ram this through so that millions of copyright holders will have no idea that this is happening.”

Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.

This is the problem with the settlement. Under ordinary legal principles, if I take a fungible commodity from you, say I total your car, all I owe you is the market value of a suitable replacement. Every 2004 Toyota Camry is the same.

That can’t be said of books. Although it may seem that every book by Harold Robbins is just like every other, and for that matter every book by Jacqueline Suzanne or Ira Levin, or that most fantasy books printed today are just yesteryear’s Dragonlance novels warmed over, that’s not true. Every book, no matter how horrible, is unique, unless it’s plagiarized or stolen, in which case the law grants the victim the right to an injunction against further copying, the right to say, “Stop! This is mine. You may not copy or reprint it without my permission and on such terms as I demand.”

Only now it isn’t. Under the Google Books class action settlement, Google, alone in the universe, would be allowed to reprint and redistribute the work of any author who doesn’t opt out of the settlement, with or without the author’s consent. And it’s a fair bet that most authors don’t know that their rights are being bargained away.

How the case got certified as a class action is beyond me. How a court could order a binding settlement, eliminating the unique right of each author of Harlequin Romance novels, or for that matter more worthy authors, to say, “You may not copy this,” calls into question whether class actions are really that good an idea to begin with.

Here’s hoping the court recognizes that as well. The ideal outcome would be for the court to reject any settlement that isn’t agreed by each affected author, or better still, to decertify the class entirely, leaving Google, and the authors whose work it may or may not be stealing, to deal with one another in individual lawsuits.

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11 Comments

9 Comments

Scott Jacobs • Aug 19, 2009 @10:33 am

I would only find this acceptable if it also covered college text books.
Charles • Aug 19, 2009 @10:43 am

Is the opt out on a rolling basis or a one-time pre-settlement offer? A continuing option to opt out doesn’t save this completely but makes it slightly less bad. I especially don’t like that Google actually appears to ACQUIRE COPYRIGHT in orphaned works and possibly public domain works, which is not reasonable at all.

At the same time, there is a lot of information out there that languishes precisely because it is damn near impossible to access in analog form and something should be done to digitize it.
Patrick • Aug 19, 2009 @10:52 am

It isn’t a rolling opt-out, it is binding, it does require action to obtain damages for past and ongoing infringement, and it does extinguish such rights if not acted upon by January 5. See Rust’s summary of the settlement here:

http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q14

With a link to the full agreement elsewhere on the page.
Mark • Aug 19, 2009 @1:01 pm

I don’t know anything about copyright law, but wouldn’t there be legal issues if it had gone the other way, as well? One possible framing would have Google taking the role of modern library; albeit an extremely efficient one wherein you could check out an infinite number of works and avoid the Dewey Decimal System. When digital copies of books become standard (and they will, eventually), how would a public library operate except on a Google-esque (Googalian?) model?

This causes problems with older books, perhaps, but it’s the same practice with libraries today, only unhindered. Google’s digital library is the perfect expression of the concept. Seems to me that if you allow one and not the other, courts and regulatory agencies will have to establish how frequently books can be distributed before it’s a violation. What a nightmare.

Sure, Google’s a corporation – but what’s the difference? The underlying question is the same. If I’m able to walk down to the local library and check out a book, how can I be unable to view it on the library website, unless the objection is that digital copy distribution isn’t inconvenient enough. That’s an horribly vague requirement for courts to flesh out. Can I give digital copies to a friend, like I’d loan a book? They’d have to delete it when they’re done, though – scout’s honor. Can I keep copies on my laptop AND on my desktop? What if it’s a family desktop? Office computer? Is a purchased digital copy a shared marital asset, or would it be piracy to allow your wife to read it?

And most of all: how in the WORLD would you find out if someone was passing it out ‘the wrong way’?

Look, these are all abstracts, and have nothing to do with the actual case above, but the point I’m trying to make is inevitability. Thinking of digital copies the same way we thought of paper won’t work. Publishing will not be the same. I think it could be great for authors (self-publish! no cursed haggling with Random House!), and unbelievable for readers. It’s a good thing. Blogs won’t kill journalism, piracy hasn’t killed music, and TiVo didn’t kill television. Google won’t kill writing.
TomH • Aug 19, 2009 @2:24 pm

I prefer “Googalian” and well, what is the profitable and free market solution to free and easy copying of works? Other than DRM that is. I’m stumped, myself.
Mark • Aug 19, 2009 @3:16 pm

Oh, man. I typed out a long response to that and accidentally clicked out of it. Retyped version, with less flair:

Companies are going to find a way to profit from this (pay-per-click, subscription fee, etc.), and to acquire content they’ll have to pay the authors. Profit-seeking businesses, unlike individuals, are not hard to enforce copyright on. Competition ensures authors get best deal possible; probably make more because without an institutional publisher costs of production are real low, so money goes to creative and…bandwidth, I guess?

Some people will share copies that no one gets paid for, but if prices are legit it won’t be enough to derail the system. Problem with iTunes is they’re charging CD prices for albums that were infinitely cheaper (just another upload) to produce than physical products. And no real marketing in the traditional sense. I went vague and rambling in my first post (I tend to do that), but original thought was: Authors will do well if they don’t obsess about ‘copies’. That’s an outmoded way of thinking of their product.
Grandy • Aug 19, 2009 @7:24 pm

1. It would be nice to shift lots of older works into the public domain. No not just nice, it would be the right thing to do. There’s too many forms of media where interesting things languish now because of a combination of IP law (gone wrong, in some cases), the sorts of entanglements that arise when properties change hands many times (and become far removed from the people that created them), and because there are litigious bastards like that dude who made some ratty company called The Edge or whatever 27 years ago.

2. God Google is evil.
M • Aug 20, 2009 @2:20 pm

When I signed a contract with my publisher it didn’t include rights to publish the book online. It would seem to me that their actions cause problems between artists and publishers who signed contracts. If someone else produces something the author can be in breach or contract for allowing it. I take steps to protect reproduction my artwork online but in a case like this I can’t, and that’s a problem when they do something like this.
Gray • Sep 15, 2009 @8:05 am

Wouldn’t it be more fair if authors were compensated the same way Songwriters are today? There already exists the precedent in statute. Any Artist may record a Songwriter’s material, provided it is published, and release it; as long as they play the songwriter the mechanical rate (currently 12.5 cents per unit sold). Songwriter’s can’t legally refuse to have their work recorded by an Artist. The mechanical rate has it’s problems (it’s way too low in real dollars) but it’s already there. It seems like this might be applicable.