Googlebooks re-deal won't let orphans go
Revised pact frees foreign works (UK excepted)
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Google and its fellow parties in the ongoing Google Book Search case have released a revised incarnation of their proposed settlement, as they attempt to win court approval of the controversial pact.
The revised settlement includes several changes designed to appease regulators, public advocates, and Google competitors who've opposed the deal. But Google and the American authors and publishers on the other side of the settlement are still intent on digitizing so-called "orphan works" - the deal's most controversial aspect.
Rather than give up the orphans, the parties have proposed that for up to 10 years, an independent fiduciary will retain all orphan works revenues that would have gone to the rights holder. After five years, 25 per cent of these funds may be used to located the orphan's rights holders. And after 10 years, these funds may be given to literacy-based charities.
But the pact still gives Google the right to digitize and make money from orphaned works - a right no one else would have. "Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand; fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners," said the Open Book Alliance, a group of organization that has vehemently opposed the deal, including Amazon and Microsoft.
"None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest."
Last fall, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over its Book Search project, which seeks to digitize texts inside many of the world's leading research libraries. The Mountain View advertising giant has already scanned at least 10 million titles, many of which are still under copyright.
The pact creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a cut of Google's revenues. But it also gives Google the unique right to scan and sell and post ads against orphan works: books whose right holders have yet to come forward. And although other organizations could negotiate the rights to books in the Registry, the Registry alone would have the power to set prices. Many are concerned the Registry would have no incentive to keep prices down.
International authors and publishers have also objected to the deal, arguing that a vast number of the books scanned by Google would be foreign works - and that these would be bound by the settlement of a civil court case in the US.
For instance, under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), foreign copyright holders needn't register with the US in order to maintain their rights stateside. But under the terms of the original settlement, authors couldn't protect themselves from Google without explicitly registering with Google.
In other words, they would be in the same situation as US rights holders. The Books Rights Registry is an "opt out" creation.
After the US Department of Justice urged a federal court to reject the deal as originally written - citing concerns over class action, copyright, and antitrust law - authors and publishers asked for additional time to revise the pact. And Google did not object.
Federal Judge Denny Chin gave the parties until November 9 to submit a revised deal, but he later granted a second extension until yesterday.
In addition to amending the treatment of orphan revenues, the new settlement only allows orphan works from English-speaking countries: the US, Canada, the United Kingdom, and Australia. "After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices," reads an FAQ on the settlement from the parties involved.
If rights holders in the other foreign countries have registered their copyright with the US, they are still part of the settlement's class.
This English-speaking-world bit will please France and Germany, who formally complained to the EU about the original deal. But that leaves the United Kingdom. They complained too. ®
Update: This story has been updated to show that the independent fiduciary mentioned in the revised settlement will retain the orphan works revenues that would have gone to the rights holder.
COMMENTS
@AC (Bill & Ben)
"Only the owner of the copyright can agree the price."
- And they will still do so under the GBS:
'Consumer Purchase Pricing: Rightsholders have two options under the Settlement for setting the sale price of their books sold for Consumer Purchase: they can set the price themselves in U.S. dollars (Specified Pricing) or they can allow Google to set the price based on a multi-factor formula that is designed to maximize revenues for the sale of the book (the "Settlement-Controlled Price").'
The GBS is remarkable for the massive amount of misleading crap coming from its opponents. The arguments against the GBS seem to fall into 3 groups: outright lies, pure FUD and straw-man nonsense about orphan works.
I used to think that authors might have a point, until I read a bit deeper and found out how baseless all their whining really is. More power to Google!
Too man cowards don't get it.
The author doesn't decide if the book stays in print or not. Its the publisher. If you can't continue to sell enough copies, the book falls out of print.
Many books are still under copyright protection but are out of print. They still have value...
Google is essentially asking for the courts to grant them rights to negotiate the $$$ for reproducing and violating the copyrights unless the author specifically opts out.
The compensation is being negotiated by a guild which may or may not represent them and if they don't object, then the author is screwed unless he already has $$$ to hire attorneys and fight this.
In short, the agreement should be opt-in. Thus if google wants to include the book in their collection, Then the burden of tracking down the orphan work's author is on them. Unless they can find him/her or their estate and get their permission, then they can't copy/reproduce their works without it being a copyright violation. The burden is on Google because they are the ones who are attempting to profit from this. And note, google is doing this because they believe they can profit from this.
If the author is not a member of the guild and they did not explicitly give the guild the right to negotiate on their behalf, then the guild does not have the rights and google would obtain the rights through adverse possession. What makes this worse is that once the agreement goes in to effect, then the clock starts ticking.(Statute of Limitations) Don't know how long, but my guess is that the author or their estate would then have 3 years to object once the deal is done. After that, Google is in the clear. No one else has the same rights unless they want to go through the same exercise.
In short, Google would be using the law to legally still rights not given to them.
IMHO, the US Library of Congress should be doing this, not a private company.
Of course, if the US government wanted to, they could probably snatch this away from google.
:-)
Massive fail because behind the software patents, here's another way the law can screw the honest citizen.
AllofMP3 to put profits in escrow
AllofMp3 announced today it would sell orphaned MP3s, but promised to keep the profits in escrow.
I also plan to sell old movies on my new website: BuyHollywoodBlockbustersForTenCents.com, and put the fee (I reckon 10% of my profits is enough) into a separate company that will ensure the rights of the movie studios are protected.
When the owners of these orphaned movies prove they own the copyright, they can claim the fee! Who could possible complain about that?
And to prove this is a good thing, I have Uri Grabacutski of the Protecting Publishers Rights of Russia, and he says this is totally cool and legal! He agrees 10% is generous, so nobody can possibly complain about this!
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Good for goose good for the gander. If it works for books in the US, then it works for movies, software, audio, radio, where-ever orphaned works exists, they can be seized and sold under this principle by anyone, anywhere, and its legal just as long as I stick some unagreed sum in an account as 'payment' for the license I didn't sign approved by someone that didn't have the right to approve it.
"And now we see two prominent UK authors, Margaret Drabble and Maureen Duffy, join the tiny group of 'representative plaintiffs' in the Google Books class action case. Drabble is the Chairman of the UK Society of Authors. Duffy is the Honorary President of the Authors’ Licensing and Collecting Society."
If Margaret Drabble or Maureen Duffy, took a book by Terry Pratchet and sold it as though they had the right, Terry would sue their asses and take all their money. It is no different if they try to sell it to Google!
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