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February 05, 2010


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Frances Grimble

I agree with most of what you have said, except: It is true that IF Google could negotiate contracts for the millions of scanned recent and in-print works by locatable copyright holders, Google would not need the Settlement, except for so-called orphan works. (I suspect the number of true "orphans" would shrink drastically if Google made diligent efforts to search Copyright Office records and to locate copyright holders.)

However, numerous publishers and authors do NOT wish to sign contracts with Google. Especially small publishers, self-publishers, and authors whose rights have reverted to them, and who have had no hand in negotiating the Settlement. They do not need Google to publish e-books and print-on-demand books for them, and to take a cut of their profits for do doing. The technology is accessible and affordable to all, many are already using it, and the books can easily be distributed using non-Google online venues such as Amazon.

I have little confidence that Google will honor opt-outs. After the Author's Guild suit was filed, Google set up a database promising copyright holders that Google would not scan the books entered in it for the Library project, or would "try" not to--their website language varied at different times you accessed the account. (I opted out my books from scanning using such an account.) However, this database does not display the dates the copyright holder opted out the books, meaning Google could always claim they scanned the books before they were opted out. The American Psychological Association wrote a letter to the court saying they had opted 1,100 works out of Library scanning by letter, which Google acknowledged, but by August 2009, 950 had been scanned anyway. Google sent up a handy online opt-out-of-the-Settlement form for versions 1.0 and 2.0 of the Settlement, but no one who used it received any confirmation of the opt-out from Google--no letter, no email, no confirming web page message. The Settlement explicitly does not promise copyright holders that the scans of those who opted out of the Settlement will not be sold or given away by Google anyway.

As a self-publisher, to me this seems like a threat. Google can publish my works, control their copyrights for the rest of my life, and pay me a pittance following a contract that they negotiated with entirely different parties with different interests than mine. Or, they can publish my works in direct competition with me and pay me nothing at all, knowing I don't have enough money to sue them. Plenty of authors and small publishers who opted in (or who did nothing) did so because they felt they had no real choice.

Therefore, the class action suit is also a way to try to force an unfavorable contract for recent and in-print works onto millions of easily locatable copyright holders who would otherwise be unwilling to sign it.

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