I really think that too many small and self publishers are missing the really major issue with the Google Settlement. Far too many are taking the “we can’t do anything about it” approach. I think that’s a defeatist attitude.
Marion Gropen, whom I greatly respect, posted “Google and the Big Publishers” on her excellent Publishing for Profit blog this past Monday.
Her analysis is probably correct, but I disagree with her conclusion that we just have no real option but to embrace the settlement (even if we have to hold our noses to do so).
We at Slipdown Mountain Publications LLC have decided to opt out. Before making that decision, I did the following:
- Participated in two recent seminars on the topic — Joy Butler’s teleseminar and the CCC/Lois Wasoff webinar
- read everything I can get my hands on (including the complete settlement package)
My conclusion is that Google has been violating copyright for several years now under their dubious “fair use” rubric. In addition, I consider their actions to be blatantly unethical, something that they’ve been guilty of in many other areas as well.
If you believe Google has the greater good in mind as they pursue this, I have a bridge in Brooklyn for sale.
Google’s obvious goal of making as much profit as possible is not, in and of itself, to be condemned. But HOW they have set about doing it is, in my not-so-humble opinion.
Google is certainly not alone in the unethical business practices arena. They have a lot of company — Microsoft (most of the time), Amazon.com (sometimes, in some areas), and AIG come to mind.
I don’t see much likelihood of any small or self publishers making any measurable profit by remaining in the settlement. There are far too many unknowns, undefined terms, and vague conditions in it.
Don’t forget that the highly touted 63% of revenues that rightsholders will ostensibly make is based on NET revenue. Which means 63% of whatever is left after Google and the new Book Rights Registry deduct expenses (none of which are defined or limited in the settlement).
Oh, and Google has the right to determine the selling price at up to a 40% discount from your retail price, further reducing those NET revenues.
What would happen if a large percentage of small and self publishers opted out and declared (in the words of Howard Beale in the movie Network), “We’re mad as hell, and we’re not going to take it anymore.”
Sadly, we’ll probably never know.
But whatever you do, don’t ignore this and just let Google take your rights because you dithered too long.
And be sure to read my post “Google Settlement – Not So Good” for more reasons to be skeptical.
Walt,
Thanks for mentioning my teleseminar, “What the Google Book Settlement Means for Authors and Publishers”, in your blog posting.
Let me offer one point of clarification regarding the author-publishers’ 63% share of revenue. The 63% does actually already factor in Google’s operating expenses. Google takes 10% off the top; then allocates 63% of what’s left to authors and publishers. The ongoing administration, operations, and tax costs for the Book Rights Registry will come out of the authors/publishers’ 63% share.
- Joy Butler, Attorney and Author of The Permission Seeker’s Guide Through the Legal Jungle
Joy,
Thank you for the clarification. I did understand that but failed to state it clearly. Maybe I should stop writing blog posts so quickly.
However, as I read the settlement, it seems to me that the 63% will apply to the selling price. If Google sells it at a 40% discount, the amount passed to the Registry (for eventual distribution to rights holder) will be 63% of the other 60% (i.e., 37.8% of retail). Then the Registry will deduct their expenses from that before paying the rights holder what’s left.
I’d be surprised if rights holders see more than 30% of retail price under those conditions.
I agree with Joy about 63% being effectively 63% of gross, not 63% of net. (The agreement specifies that Google’s operating expenses are to be deemed 10% of gross, so the 63% number is 90% of 70%).
Certain limited discounts for consortium sales are also specified in the agreement and they are quite a bit smaller that the 40% that you estimate. So don’t be surprised if you are very surprised.
I think we’re trying to split hairs. Google deducts their 10% for operating expenses.
According to 4.5 (a) (i) in the Settlement: “Google shall pay to the Registry, on behalf of the Rightsholders, the Standard Revenue Split for Purchases. The “Standard Revenue Split for Purchases,” paid by Google to Rightsholders, through the Registry, is seventy percent (70%) of Net Purchase Revenues.” And those Net Purchase Revenues are after the 10% operating expenses.
Of course, the 63% goes to the Registry, whose allowable expense deductions are far from clearly defined.
4.5 (b) (ii) says: “The Registry may authorize Google to make Books available through Consumer Purchases at discounts of up to forty percent (40%) off the List Price, subject to notification of such discount to the Registered Rightsholders of the Book, with an opportunity for any such Rightsholder not to approve such discount. If Google sells Books at such a discounted price, the Standard Revenue Split for Purchases will be based on such discounted price.”
Anybody want to bet that Google won’t continue to apply its strong arm tactics and damn-the-torpedoes-full-speed-ahead approach it has been using regarding copyright all along? Maybe if you don’t agree to a 40% discount, they’ll just drop your book from the database…
4.5 (b) (iii) allows Google to set a discounted selling price for “Institutional Subscriptions” of up to 10%. 4.5 (b) (V) also allows Affiliate Program discounts of up to 3.75%.
All of the above will directly affect the gross revenues from which Google will deduct its 10% operating expenses and pass what’s left to the Registry. The Registry will then deduct some unspecified expenses and distribute what’s left to the actual copyright owners.
And all bets are off it Google decides — pretty much on its own and with defined limitations — that your book is “not commercially available” and, by Settlement definition, subsequently out-of-print! The Settlement clearly puts the burden of proving that a book is “commercially available” on the publisher or author. And proof is required, without which Google can pretty much do whatever it wants with the book (probably with the collusion of the Registry).
I don’t believe the Authors Guild or the AAP had any right to push this as a class action except for their actual members. They’re clearly in it for their own glory and to expand their influence.
Google has consistently shown itself to be anti-copyright and prone to using its size and deep pockets to thumb their corporate nose at anyone who doesn’t like what they do.
If you want to continue to trust an unethical company, based on a questionable “settlement,” go right ahead. We have declined.