Rounding the bend toward the finish line in college I found myself with a few electives to burn. Although sci-fi was not and is not a passion of mine, I decided to take a science-fiction survey course because I knew there were good writers working in the genre. Over the course of the semester we read through a stack of classics — some hard science, some soft sci-fi — and I genuinely enjoyed them all.
While I don’t remember the titles of many of the books (I’m terrible with titles), we covered the names anyone would know: Philip K. Dick, Ray Bradbury, Isaac Asimov, Harlan Ellison and Ursula K. Le Guin. I remember Ms. Le Guin particularly because her unusual, rhythmic name somehow matched her powerful prose style.
As regular readers know, I am interested in the proposed Google Books Settlement with the Author’s Guild (now GBS 2.0) — a lawsuit so grievously damaging to existing copyright law that it was challenged and defeated in its original incarnation by the U.S. Justice Department. For this reason, it was with interest that I read yesterday that Ms. Le Guin resigned from the Author’s Guild last week, after thirty-six years:
My letter of resignation from the Authors Guild
18 December 2009
To Whom it may concern at the Authors Guild:
I have been a member of the Authors Guild since 1972.
At no time during those thirty-seven years was I able to attend the functions, parties, and so forth offered by the Guild to members who happen to live on the other side of the continent. I have naturally resented this geographical discrimination, reflected also in the officership of the Guild, always almost all Easterners. But it was a petty gripe when I compared it to my gratitude to the Guild for the work you were doing in defending writers’ rights. I went on paying top dues and thought it worth it.
And now you have sold us down the river.
I am not going to rehearse any arguments pro and anti the “Google settlement.” You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.
So, after being a loyal if invisible member for so long, I am resigning from the Guild. I am, however, retaining membership in the National Writers Union and the Science Fiction and Fantasy Writers of America, both of which opposed the “Google settlement.” They don’t have your clout, but their judgment, I think, is sounder, and their courage greater.
Ursula K. Le Guin
Although I have neither the standing nor reputation of Ms. Le Guin, her sentiments are mine. The heart of the matter in the Google Books case is copyright law, and in that respect the Authors Guild’s failure has been total. Rather than strengthen the sole legal standing upon which all of its members’ careers and legal rights rest, the Authors Guild has (as all bureaucracies do) proposed trading the rights of its members for a pitiful and doomed lunge at power and prestige.
Ms. Le Guin is quite accurate in noting that the Authors Guild did all this without any compelling reason. They are simply granting Google broad (and in my view illegal) copyright permissions against the best interests of their own membership. The only thing standing in the way of this embarrassment is a judge’s opinion.
On the heels of a recent conversation I understand that there is a contemporary belief that copyright law is antiquated, if not inherently contrary to the digital age. Apart from my own resistance to such arguments, it seems highly unlikely to me that Google as a corporation feels the same way about its own copyrights. Were I to begin scanning and making available documents to which Google holds copyright, I find it very difficult to imagine that I would not soon be the recipient of a forceful cease-and-desist letter, if not notice of an actual intent to sue for damages.
To the extent that Google and the Authors Guild are determined to weaken copyright law for individuals, while strengthening the right of corporations to appropriate copyrights first and answer questions later, I can only hope that the courts will see the fallacy of this proposal. I tend to believe, however, that the courts will defer to the settlement agreement as a means of punting the issue back to the legislature for clarification — during which time Google will lock up the franchise that it has been seeking all these years. (I was pleased to read that Google had recently suffered defeat in the French courts.)
If the proposed amended settlement is to be derailed, I honestly believe the impetus will come from individual copyright holders, and in particular writers of note. I welcome Ms. Le Guin’s defection from the Authors Guild’s ranks, and I hope other notable authors will take a stand in the few weeks that remain before the onrushing 2/19 court date.
— Mark Barrett
John Cowan says
Since you seem from your other posts to be a copyright pragmatist, I’d like to hear your specific arguments against the settlement.
(Disclaimer: I work for Google, but have nothing to do with Google Books.)
No worries about the Google association, and I welcome the question. In answering, I’m not sure I can attack your question without prodding the premise, but I believe I’ll get to your point in the end.
1) Imagine for the moment that you want to put someone’s copyrighted book on the web. You look for the person, but you can’t find them. You know who wrote the book, the book is clearly still under copyright by someone else (meaning, specifically, not you), and there doesn’t seem to be any way to find the person who wrote it — or who owns the copyright, if that’s a different person.
To my way of thinking, that’s the end of the line. You have no right to put the book online. You have no right to digitize it or assume any responsibility for that work. If you can’t find the publisher and convince the publisher to make more copies — or to locate the copyright holder so you can talk about digitizing the work — then that’s the end of the story. It may be an unhappy end, it may deny people the opportunity (not ‘the right’) to read the book, and it may waste the capabilities of the internet in the digital age, BUT THAT’S THE LAW.
2) Google decided at some point that it didn’t have to recognize the ownership rights of copyright holders. It made that decision, despite the fact that it didn’t own many of the books it started scanning. To my mind that’s a crime — as in an actionable illegal act. (Recently, the French courts agreed, and I suspect other jurisdictions may follow suit.)
At some point, the Authors Guild attempted to address this basic problem: that Google was making decisions about property they didn’t own. And at first I think the Authors Guild was actually trying to enforce the law. But at some point — and apparently fairly soon — the Authors Guild got seduced into thinking that it could make some sort of ground-breaking deal with Google that would make the Authors Guild (not the writers who are represented by the Authors Guild) look good.
Nobody who looks at the original settlement, or the tweaked revised settlement, can say with a straight face that the core issue of ownership of copyright has been adequately addressed. Google is still making the claim that it has the legal right to take works that it does now own copyright to and digitize them — and I think that’s wrong.
3) Google is also claiming that the scale of the undertaking both threatens its own health as a company and obligates it to plow ahead if it cannot find the original copyright holders, yet it also promises to locate copyright holders after the fact. I am not interested in problems of scale as an excuse for breaking existing laws, and I am not persuaded that finding copyright holders in advance of digitization (if that’s a word) is any more of a problem than finding them afterward.
So: Google shouldn’t be doing what it’s doing, and the Authors Guild shouldn’t be abetting them. They’re agreeing, in the settlement, to the voiding of other people’s ownership rights, and to breaking copyright law, and I don’t think either party has a right to do that.
As to the laudable goal that’s being trampled by corporate greed, here’s my take on that:
“Imagine for the moment that you want to put someone’s copyrighted book on the web. You look for the person, but you can’t find them. You know who wrote the book, the book is clearly still under copyright by someone else (meaning, specifically, not you), and there doesn’t seem to be any way to find the person who wrote it — or who owns the copyright, if that’s a different person.
To my way of thinking, that’s the end of the line. ”
Ah-heh. Seriously? I’m a strong-copyright advocate, but that seems a bit punitively hardcore.
I mean, let’s just get this out on the table, here: You’re saying that you’d rather see orphan works disappear from human memory than see any copyright infringement be allowed. Even infringement on copyrights which the owner no longer chooses to defend. Even in a legal environment that strongly supports owners who _do_ defend their copyrights. You seriously want to see a creator’s output vanish if that creator cannot be contacted.
“I mean, let’s just get this out on the table, here: You’re saying that you’d rather see orphan works disappear from human memory than see any copyright infringement be allowed.”
I’m not saying anything remotely like that, and your restatement of my conclusion is erroneous. Orphan works would only disappear from memory if all extant copies of those works were destroyed. If Google wants to buy a copy of the book it can house it until the printed copyright date runs out, then do whatever it wants with the contents. Or it can offload such costs onto the world’s libraries. (Or it could digitize the work, hold it until the copyright runs out, and then exploit the work. What Google wants to do is jump the gum and exploit the work before copyright runs out.)
“Even infringement on copyrights which the owner no longer chooses to defend. ”
Here you effectively place the burden of proof on the one person who is already defended by existing aw. One of the main reasons we have laws is to preclude this kind of thing entirely. For any civilization to work it must make clear what is right and wrong without some aggrieved party first having to actually knock on your door and demand that you return the money you stole from them. Copyright law does that.
If a copyright owner cannot be located, how can you say that they “no longer [chose] to defend” their copyright? They may be living under the idiotic assumption that their rights don’t need defending because they already own the thing you want them to defend. Am I obligated to stand guard over my car each night, to keep it from being appropriated by Google?
I see, so it’s no-more-talky for me? Right then. Have fun listening to echoes!
We are already in a current state wherein if you do not defend your copyright, you lose it. Any reasonable person who publishes anything knows this. [Which is part of why putting a copyright / limited use notice in e-mail signatures is ludicrously stupid and irritating.]
How do you defend your copyright, when you don’t know it’s being abused?
Suppose you do decide to defend it … google would starve you out. You’d win in the end, and properly so, but you’d never get to the end.
Seems like part of the problem is google tracking use and paying fair amounts, and paying the holder if/when they do find them. That is, they should be doing this.
Also seems like google should be paying into a pot, for the authors, as music radio does.
Both arguments in the other comments have fatuous elements.
How many works go unpublished because the publishing house isn’t willing to publish. Even though the author ardently wishes it. In this age of zero cost publishing?
There must be a better way, with appropriate compensation, and with the works getting processed by google.
I’ll be the first to admit, however … I wouldn’t trust google. A 3rd (public interest?) firm, yes, but not Google.
Your point about needing to defend your copyright against an abuse you could not have imagined is probably my biggest complaint about Google’s conduct. They give themselves a free pass on violating copyright law simply because of the scale of their undertaking, and yet it is precisely the scale with positions them so advantageously as to make it their biggest advantage in this undertaking.
No copyright holder should have to opt out of anything — it’s preposterous. But we live in a nation defined by exceptions which are granted to people who believe they can make a buck with that exception, so I am prepared to see Google rewarded for its abuses. If the banking collapse and remorseless revival of the same business practices that led to the collapse are not a life lesson here, I don’t know what is.
Charlotte Weaver-Gelzer says
I appreciate the Ditchwalk discussion of the Google copyright issue. I have a novel out of print, to which I retain copyright, but which is of such little importance one can’t expect to have a voice like UK LeGuin’s reflecting from its remaining bit of existence. I had about given up trying to understand the complexities of the Google case until reading the exchanges above. Ditchwalk’s comments and responses are well-reasoned, sharp, clear and trenchantly helpful in grasping the situation. Thank you.
Thanks for the kind words, and apologies for overlooking them until now.