Sunday, March 29, 2009

WSJ prints opinion article that is horsehit I disagree with

Here's the link

Google is in the process of digitizing books. The Google Settlement makes sure authors get paid for that. It's hard for me to understand why an agent would object to authors getting paid. I usually only object if my authors aren't getting paid enough.

Perhaps the answer is that I actually read the settlement and attended the two AAR sponsored programs on it. Ms. Chu states overtly in her first paragraph that if she read it at all, she didn't understand it ("understanding this monstrosity by May 5, 2009, is going to be rough")


Also, Ms Chu is wrong. The May 5, 2009 deadline is an opt-out deadline (not an opt-in or ignore). Unless you opt out, you are in the class, and covered by the settlement. If you opt-out, the only right you preserve is your right to sue Google for copyright infringement.

Ms Chu uses "class representatives" in quotes to indicate she questions that designation, and further asserts "no one elected" these people. Of course they weren't elected. They're plaintiffs in a lawsuit.

"Class representatives" is a designation in the lawsuit. It's not like class representatives to the Student Council. It's puzzling why anyone would expect a million authors to each do their own work on this case. The idea of people with similar concerns banding together to have a "class representative" in such lawsuits is one of the many reasons authors belong to the Authors Guild, publishers to the AAP and so on. I'm all for individual rights, but let's be sensible here.

Then, Ms. Chus is either uninformed about or simply ignoring the existing rights licensing and monitoring "quasi-judicial bureaucracies" (The quotes are multi-tasking here: I'm both quoting her and questioning the accuracy of the designation): BMI and ASCAP.

The music industry has long had several associations registering, monitoring, collecting, and disbursing licensing fees for music. I'm familiar with BMI and ASCAP but there are others. It's a pretty easy system to use. It's worked well for a long time. It's not perfect, no system is. What it does though is beat the hell out of each composer or rights holder trying to collect licensing fees individually.

What ASCAP and BMI do, and what the proposed Rights Licensing for Authors group will do, is offer a single place for people to register their works, and for people who want to license those works to obtain permission and render payment. This is a critical step in the Google Settlement because the value of a huge digitized body of works is not in a single work but in the completeness of the body.

In other words, a work has more value as part of the collection than by itself. Libraries will license a collection of works, but individual authors will get paid. A central rights clearing organization is the only efficient way to do this.

Ms Chu should in fact pay a royalty to Chicken Little for infringing on his sky is falling histrionics. For those who seek a more measured look at the settlement, The Author's Guild is a good place to start.

20 comments:

Superfast said...

It is so depressing to see such poorly researched and prepared opinions published in major newspapers. Especially considering the number of carefully crafted columns I've chucked into the black abyss of 'no reply means no'.

BTW, 'horsehit' in the title is a sure-fire instant click-and-read tactic. I'll have to remember that one.

Tara Maya said...

I have bought several books because I read part of them on Google books. Just sayin.'

GBG said...

So, does the settlement mean there will now be more books available on google, for a fee?

Rick Daley said...

And journalism continues its digression into low brow opinions devoid of fact.

Thanks for casting actual light on the subject, at least we have ways to stay informed despite the best practices of the media.

jnantz said...

Living close to the UNC-Chapel Hill campus, and reading the drivel that comes from their "esteemed" journalism school graduates on a consistent basis, I am in no way surprised that such a poorly-researched article was written and printed. I'm not even surprised that it it's in the Journal.

Journalism across the country has become increasingly shock-oriented, with the focus on getting the scoop versus getting the story right. And integrity has gone the way of the dodo. It is a shame, and I hate to see anyone lose their livelihood, but with papers closing or cutting back across the country, perhaps it will spur these writers to learn there's more to writing than just putting words on paper. If not, well at least television news is without reproach, RIGHT??

(kidding...)

Matt said...

I adore you, I really do, but I'm troubled by the premise that you shouldn't object so long as your authors get paid. That seems short-sighted.

And using BMI and ASCAP as examples of payment societies that work. . .yikes. As with most bureaucracies, they seem far more interested in generating revenue for themselves and increasing the scope of their control over content than they do in finding and paying the artists they supposedly represent.

The music industry has denied (or conveniently ignored) the promotional value of the internet for far too long. Instead it's focused on monetizing every snippet of every song that appears anywhere on the web. That tactic hasn't exactly been successful. I'm nervous about the publishing industry going down the same path.

Janet Reid said...

Matt, I'm not saying BMI and ASCAP are perfection on toast points. I am saying that having a central registry for collecting and distributing rights licensing fees exists, and it does work. Perhaps not as smoothly or altruistically as one would desire, but it's not the end of the world.

The tone of the opinion article suggested this was the start of the Politburo for publishing and I disagree.

I agree with you that the music industry offers a pretty clear example of some things NOT to do as well.

Matt said...

I agree that the article was misinformed at best.

My broader concern, and possibly one that's off-topic, is that I get nervous every time I read about a battle over new technologies like the Google scanning project and the Kindle text-to-voice feature. I wonder if we're being myopic.

The music industry seems convinced they're in the business of selling round plastic disks, and not the experience of music. I'm concerned the publishing industry is going down the same path.

I want to tell stories. I don't care if it's printed on dead trees or flashed on your now-somewhat-used Kindle. That's kind of the point of the Google settlement, I know, but I don't know that it's the right solution. Are we only making it more difficult for people to find great stories by suing every company that tries to deliver content in a new way?

As someone still trying to get into the business, I sometime wonder if I'm trying to jump into an empty pool.

BJ said...

Hey, Janet! You made the Publisher's Lunch twitter feed!:

PublishersLunch#plnws Agent Reid Objects to Chu's Cluelessness In WSJ Column http://tinyurl.com/dgmz9g

Now, if you get a whole bunch more responses, you'll know why.

Robin said...

I come from a family of journalists. My father was a journalist, my brother, my sister-in-law are journalists.
Journalism has suffered from being taken over by a corporate mindset that values the dollar more than accuracy and the truth.
It's the page 6 mentality that has turned many newspapers into rags.
While some of the blame can be laid at the feet of novice reporters, it's useful to ask why are so many novice reporters writing important stories?
It's because the corporate owners of newspapers came to believe a newspaper is no different a commodity than kleenex.
Once upon a time the Publisher of a newspaper was a journalist who had started in the trenches and worked for years as a writer, an editor, learning every aspect of what makes a newspaper run.
But the powers that be decided they wanted the person with the business degree or a lawyer to step in as publisher.
The result has been disastrous to the world of print journalism.
The first people they let go are the experienced writers and editors with the highest salaries.
My local paper once was a Pulitzer Prize winning paper.
Now, most of their stories are pick ups from the AP or generated by novice journalists who aren't ready to take on the stories they're assigned.
It's just another art form gone to seed because money became more important than quality.
Don't get me wrong. I fully understand the need to make money, the need to sell the "product" but there are some things that should never be a mere product to begin with.

Janet Reid said...

Matt, I believe I understand what you're saying and I concur that trying to stop digitialization of books (like trying to stop music downloads) is counterproductive.

The Google Settlement doesn't stop digitalization. It sets up a (we hope) efficient and (we hope) orderly way to manage those digital rights.

I agree with you that publishing isn't about the format, it's about content.

The point I'm making here is that authors are better served by assigning responsibility for digital rights management to this proposed organization than trying to do it themselves or leaving it to individual publishers.

The value of digital rights is not just the content of one book, but the contents of an entire publisher's catalog, or the entire body of an author's work, or all the books on a subject. Libraries will pay licensing fees for a body of work, not on a book by book basis.

Remember, this is digital views, NOT electronic rights like a Kindle.

sashaycommunications said...

While there is hyperbole in Ms. Chu’s Wall Street op-ed, she does raise some valid points worthy of consideration. To highlight just a few:

* The interests of all authors and publishers re the settlement are not aligned. Large publishers that control hundreds of books may view the settlement as a good deal. On the other end of the spectrum, many small and micro presses have been vociferous in their objections to the settlement. Just drop by any small press discussion forum.

* Google and the Book Registry would have much discretion in determining whether a book is or is not commercially available. For example, there are micro presses that run a profitable business and service all interested customers using only print-on-demand technology (rather than doing a more expensive offset print-run). Google may refuse to treat such a book as commercially available – and that characterization has consequences under the settlement terms.

* Like Ms. Chu, I also find some of the arbitration provisions disturbing. For example, the settlement does push many disputes that might occur between a publisher and author (e.g., reversion, whether a book is in print or out-of-print, electronic rights) out of the court system and into mandatory arbitration. The results of those arbitration proceedings will be confidential and not releasable to the public (though publishers/authors who remain in the settlement will have access to redacted versions of the decisions).

For anyone who wants more information on the nuts and bolts of the settlement agreement, I’m offering a complimentary teleseminar this Thursday, April 2, 2009, at 3:00 p.m. ET. /12:00 p.m. PT.

For more details on the teleseminar, “What the Google Book Settlement Means to Authors and Publishers”, visit http://www.joybutler.com/seminarinfo.htm

- Joy Butler, Attorney and Author of The Permission Seeker’s Guide Through the Legal Jungle

Matt said...

What's the consensus among the authors you represent? Are some on board and others completely against it? Or would most of them rather not deal with it at all?

I mentioned Kindle not because the rights issues are the same (I'm totally unqualified to comment on that), but because both are significant technological developments for this industry, and the too-common response to new technologies (in any industry) seems to be "how do we charge for that?" instead of "how can we use this to create a better experience for our customers?"

Belynda said...

By the way, I whole-heartedly support the title of this blog post. Flash-back to 8am today: Me sitting at my desk CACKLING to myself over my coffee.

Then again this afternoon when I got home and opened up Google Reader.

By the way, in Reader strikethrough doesn't work, which only made it funnier.

Thank you! I needed that!

Belvoir said...

But where is the cashpoint where authors (and agents, ahem) would receive money? When do readers actually pull out their card and actually pay?

I immensely agree with Janet in principle, I really do. But I'll admit I'm dumb on how this will practically be applied.

Music seems an imperfect comparison. We fall in love with a song very quickly, and must have it sometimes.

A book is much more of a dalliance and a courtship.
But yeah, it's a deep love indeed when it happens.

Google Books is mystifying as it is. You can read certain pages, not others.. even books 100 years old. I'm ALL for authors receiving royalties, btw.

Sorry, I'm sure I don't know enough and am just musing aloud. But really, where does anyone actually paying figure into Google Book's scheme of things?

Dunno.

freddie said...

This is a terrific and informative post.

I understand very little about the Google settlement (I haven't read much about it yet) and appreciate having a couple of places to read factual information about it. Comparing this process to how ASCAP and BMI function helps me understand how this will work. (I'm a member of ASCAP.)

As far as these composer organizations go, I agree neither organization is perfect. For one thing, the rate at which orchestral composers are paid by ASCAP is much smaller than the rate paid to pop artists. But I'm still glad ASCAP is around.

Amara said...

Belvoir,

As long as the price is reasonable, I can imagine this being a huuuge boon for students, especially procrastinators. I already had two experiences this year, where it was late, and I needed to look at books that the library didn't have. And yet, google had *some* pages available. I would have been willing to pay to use them.

So, mostly out-of-print books would be the ones I would like to view.

Sha'el, Princess of Pixies said...

My non-fiction writing partner and I both use google books for research. It's amazing. It probably shaved off a good two years of research on our last project. And we found things we would never have found the old fashioned hit the library with educated guesses kinda research.

Evan said...

I just wanted to address this from a previous post:

* The interests of all authors and publishers re the settlement are not aligned. Large publishers that control hundreds of books may view the settlement as a good deal. On the other end of the spectrum, many small and micro presses have been vociferous in their objections to the settlement. Just drop by any small press discussion forum.

The Google Settlement lets the rights holder determine how their books are displayed, does it not? There's no reason why small publishers shouldn't join the settlement and get whatever money is owed to them for the illegal display of their titles to date, and no reason why they wouldn't want to assert their right to tell Google not to display their work if they determine there's no profit to be made in having Google display it.

* Google and the Book Registry would have much discretion in determining whether a book is or is not commercially available. For example, there are micro presses that run a profitable business and service all interested customers using only print-on-demand technology (rather than doing a more expensive offset print-run). Google may refuse to treat such a book as commercially available – and that characterization has consequences under the settlement terms.

I think it's true that there's a lot of ambiguity in reference to commercial availability and print-on-demand, however, most of the language in the settlement involving commercial availibility is geared towards addressing titles that were once in print with major publisher that now may be out-of-print with rights held either by the publisher or reverted to the author. It's also important to keep in mind that this whole settlement has arisen from the fact that Google has physically taken books in participating libraries and digitized the physical copies. I didn't master in Library Sciences, but I'm pretty sure there aren't that many libraries buying whole swaths of a small publisher's print-on-demand products.


>* Like Ms. Chu, I also find some of the arbitration provisions disturbing. For example, the settlement does push many disputes that might occur between a publisher and author (e.g., reversion, whether a book is in print or out-of-print, electronic rights) out of the court system and into mandatory arbitration. The results of those arbitration proceedings will be confidential and not releasable to the public (though publishers/authors who remain in the settlement will have access to redacted versions of the decisions).


I don't think this is at all unreasonable considering the size and scope of the settlement in question. What publisher would enter into a settlement that had the possibility of spurring a slew of related lawsuits?

I don't think one should be shocked to learn that this settlement has been carefully crafted by the major publishers to benefit them more than the other classes, after all they have the most capital to expend on the lawyers to craft such a settlement, and the most to lose by allowing Google to display their works without permission.

Steve Kelner said...

I think there's an overriding consideration that is being left out. Yes, it is nice to have things available for research that are otherwise unavailable. (My doctoral dissertation hasn't exactly garnered royalties in print form, though it is theoretically possible!) Yes, it is convenient to have a central resource, and it might well generate money for authors, though it remains to be see whether this is more than pennies. If done correctly, this might be a means to make digital distribution work for writers instead of costing them money.
But the fundamental issue here is that Google decided to scan in books without regard to copyright or even doing basic research on the subject, and now that they've done the work, this settlement basically accepts their efforts as a fait accompli, and therefore accepts their arrogant arrogation of authors' rights. Why? Because they did a lot of work? So what? GM did a lot of work on crappy cars -- should we buy them?
There are many private individuals who do the same thing as Google did, entering authors' works on website for easy access. It's called stealing.
There are those who seem to think that they are entitled to this benefit -- anything they want, they should be able to get, for free. Google's high-minded statements about making information available to everyone sounds good, but remember they get revenue from making it available, so it is entirely to their advantage to get intellectual property for as little as possible.
As I said, I think this could work, and it could have benefits, but we should not underestimate the importance of the precedent being set here: a private company violated copyright freely, and by a relatively small after-the-fact settlement have made it acceptable.
It's not what they did, it's the way they did it. And what happens next.