ASJA President: “Back to the Sandbox, With Supervision”

by Salley Shannon, President of the American Society of Journalists and Authors

Google, the Authors Guild and publishers have finally admitted their proposed settlement broke so many laws that expecting the court to rubberstamp it was goofy.  We’re glad they have backed off.

Hundreds of individual writers plus a varied collection of organizations, corporations, foreign governments and foreign writers all had objected, asking the parties to make changes. It took formal intervention by the Department of Justice before the parties would listen.

Now that we have your attention and, we assume, Judge Denny Chin will allow a do-over, please don’t put the second deal together the same way you did the last one.  Let your negotiations be transparent.  Give all stakeholders a seat at the table.  Put aside zealotry.  Doing less will lead only to the embarrassment of another flawed settlement plan.

Seriously, guys!  Don’t make us come out swinging again. I’d rather be writing, and I’m willing to bet all writers would chime in with me there. Same for everybody else. We’re busy people, and we dropped everything to fight you.

Speaking of that fight: the Justice Department brief is measured in tone, but it pulls no punches.  It mentions some 28 ways the settlement plan currently runs counter to the law or skirts it so closely that the DOJ is seriously concerned. Click here to see the Justice filing in full. Among the DOJ issues:

* The settlement is not a legal use of class action.

* There is no need for the proposed new registry, which likely would constrain competition.

* “The registry is effectively controlled by large commercial publishers.”

* The “opt out” provision is upends copyright law. The Justice Department encouraged switching to an “opt in.”

Justice attorneys also scoffed at the idea that Google could possibly have any competition. The parties had insisted it could happen, and even some members of Congress agreed.  All a potential competitor had to do was repeat Google’s violation of copyrights and start scanning books, get sued, then use a  court-ordered settlement to set up their business.

Shame on you. Right up until they caved, the parties were promoting this notion. Since we are writers, copyright infringement tops our list of affronts. But actively promoting lawbreaking and misuse of the justice system isn’t far behind. Everyone who parroted this idea should be ashamed of themselves, not least the folks at “don’t do evil” Google.

ASJA applauds Justice Department attorneys for offering to work with the parties so they can get righteous on anti‑trust, copyright and the requirements for a legitimate class action.  We hope for an outcome that will serve the public good without forgetting this settlement is the outgrowth of Google’s disdain for the law and the rights of many, many individual writers.

Keep that callously made promise to the blind. ASJA lauds giving the visually impaired greater access to books. Now that the possibility has been raised and publicized, we trust you will find a way to do it — without making writers pick up the check by themselves.

Just a few months ago, the Authors Guild was insisting that the text-to-voice feature in the latest Kindle had to be turned off.  After all, book contracts generally have a clause in them governing book recordings and their revenues.

We writers are kindly folks but most of us don’t make a lot of money, unlike the lawyers who were scrambling to keep their wretched settlement alive. Put the cost of keeping this promise on their tab, please.  Or Google’s.

Opt for an “opt in.” We urge all parties to take the advice of the Justice Department to heart, and make the settlement an “opt in,” rather than an “opt out” for writers, in line with copyright law.  Stop mistaking yourselves for the U.S. Congress.  Nice try, but you don’t get to change the law.

Use the Registry we have. We hope the second round will see those paltry little infringement payments to writers sent via the Authors Registry, which the Authors Guild and ASJA helped found in 1995. It has a track record for finding writers and sending checks along, and wide industry participation. ASJA never saw the need for a massive, new bureaucracy.  Now the Justice Department agrees it is unnecessary and unwarranted.

The Money. We’d love to see writers get more of the settlement money and the lawyers less.  Incidentally. Could you at least make sure we get a little more than they do, overall, in this round?

No “Orphan Book Prize,”please.   We believes orphan book rights should not be Google’s reward for massive copyright infringement and business cunning.

Lately we see that Google sought the rights to orphan books not to open them up to the world, as it maintains.  It is starting a new print‑on‑demand business. The more book copyrights it owns, the greater Google’s business advantage.

Still needed: safeguards. We hope you’ll include ways to make sure reader privacy is protected. We need that, not slogans.  After all, Google yelled “public good!”while stealing our books.  While you’re at it, throw in a public, annual audit and some outside oversight.  If you don’t, we’ll be right back asking the court to make you do both.

One more time: Thanks, Justice Department, for offing to help.  Clearly, these guys don’t belong in the sandbox by themselves.