ANOTHER NZ PUBLISHER WRITES TO AUTHORS OVER THE GOOGLE SETTLEMENT

Dear Auckland University Press Authors:

As you are probably aware, since 2004 Google has been scanning, digitising, and providing online content search for large numbers of books (over ten million to date) from the world’s leading libraries without the permission of authors or publishers. A group of American authors and publishers, supported by the Authors Guild and the Association of American Publishers, sued Google for copyright infringement in a class action lawsuit and Google defended its actions as “fair use” under US copyright law. After two years of negotiations, the parties settled out of court and the result is the “Google Book Settlement”. This Settlement will come up for final judicial review very shortly. I am writing to advise you of the Press’s position on the Settlement.

The settlement is a complex arrangement and full details can be found at http://www.googlebooksettlement.com/ Applying to all books published or distributed in the United States before January 5th 2009 (that includes all AUP books published before that date), the Settlement:
• Resolves the lawsuit and allows Google to continue to digitise books published before that date.

· Has Google cover all legal expenses and pay US$34.5 million to establish a not-for-profit Book Rights Registry, run by authors and publishers, where rights holders can register copyright interest in their titles and establish what they will allow Google to do with that content (from nothing at all, to previews, to sales of electronic books).

· Has Google pay to the registered rights holders of all books scanned before May 5th 2009 a fee of at least US$60 per scanned book, adding up to US$45 million.

· Establishes the outlines of a business for Google selling, non-exclusively, electronic book content in the United States—licensing books to libraries, selling individual e-books to consumers, selling advertising on book pages, offering free access at one terminal in public libraries with printing for a fee—and distributing 63% of the revenue from that business to the books’ rights holders through the Book Rights Registry.

· Rights holders can opt in to the settlement (and if you do nothing by September 4th, you opt in by default) or opt out. Rights holders who opt out are not bound by the settlement, allowing them to sue Google and excluding them from the controls and payments above.

This is by no means a comprehensive summary, and those interested should refer to the website above for the full settlement agreement and Frequently Asked Questions.

From the New York Review of Books to the New Zealand Herald, there have been numerous discussions of the opportunities and threats posed by the Google Book Settlement. Some argue that providing a fully searchable electronic library of much of the world’s book content will lead more readers to buy books that they have previewed online, that the content will create new revenue streams for authors and publishers from library subscriptions and individual purchases, and that it will help democratise knowledge so that any one, anywhere, any time can access the content of major libraries. Others argue that the Settlement will establish Google as a monopoly in the digital books arena, that it hauls non-American authors and publishers into an agreement in which they played no part (and to which their local readers will for now get no access), and that it shifts the burden of copyright administration on to authors and publishers (who must now prove what content they own) from companies like Google, who want access to that content.

Because these are mostly predictions, we will only know who is right as the future unfolds. In the face of that uncertainty, Auckland University Press has to act now. We will:

* Opt in to the settlement by default.
* By January 5th 2010 we will submit a claim form for books already digitised and register all Auckland University Press titles.
* We will allow searchers to preview up to 20% of Auckland University Press books (they cannot copy and paste, annotate, or print).

I believe that this approach gives us the most control over Auckland University Press books. On the one hand, we get to experiment in the digital arena to see if Google can effectively make money out of book content, stimulate hard copy sales, and provide a return to publishers and authors. On the other hand, we authors and publishers gain maximal control over our content. By opting into the settlement, we can get complete removal of a title or all titles from the programme until April 5th 2011 and, at any time, we can close down access completely (no previews, no sales, etc).

Opting out of the settlement, we believe, poses unacceptable risks to authors and publishers. Those who opt out of the settlement can request that Google does not scan, index, and show previews of their books but “Google has no obligation under the Settlement to comply with such requests.” Its “current policy is to voluntarily honour such requests” but, with a second expensive law suit unlikely and Google always in rapid evolution, I am not willing to rely on the company’s “current policy” to protect our content. The Settlement is not ideal, it is a compromise negotiated under the real threat that Google would win in court, but with the Settlement in place we need to protect our rights effectively and participate—on a trial basis—in the new digital landscape to see if it brings real benefits.

Having waded through this long email your efforts may be for naught—the judge may reject the settlement in the next few weeks and we will all start again from scratch. But I hope that the above has outlined our position and given you a sense of the issues. Please go first to http://www.googlebooksettlement.com/ if you have questions and otherwise fire me an email at s.elworthy@auckland.ac.nz . This is new territory for us all and I hope we can work together to find our way through it.

Meanwhile, I will go back to doing what we do best—finding the best minds, publishing big ideas, and getting our books out to readers in New Zealand and around the world.

All the best
Sam
Sam Elworthy, Ph.D.
Director
Auckland University Press