The Google Books Settlement is like an archeological adventure. Move another stone in the wall and you find another dark and mysterious passage. Consider Section 3.5(a) of the settlement agreement. It is one important step in a series of opportunities for authors and rightsholders to wiggle free of the settlement terms. Unfortunately, each opportunity is limited and maybe even illusory. Choice is good, and the settlement agreement appears to give considerable flexibility to rightsholders, but appearances often do not match reality. The lack of real choice leaves authors and rightsholders in a long-term, and sometimes involuntary, relationship with the Google Books Search project.
The first opportunity for rightsholders is the ability to “opt out” of the settlement in full by September 4, 2009. It is clean and fairly easy, but you need to act quickly. Even after that deadline is gone, Section 3.5(a) establishes a second opportunity. It allows a rightsholder at any time to “remove” a book from many Google services. I am not necessarily advocating removal of books, but I do like choices.
However, “removal” under the settlement is severely limited. If I want my book “removed,” I have that power only during a period of 27 months from and after January 5, 2009. In less than two years from now, my choice is gone. I can no longer take my book and go home. In fact, I really can never go home again. The power of “removal” is not a disengagement from Google. My book may not be available for sale or in the research database, but it remains in Google’s back up storage, and it could be available for many ancillary services. Thus, whether or not I remove my book, the settlement would lock me into a relationship with Google for many decades into the future—until the sun sets on copyrights or on Google Books Search.
Consider these realistic possibilities:
The Enlightened Author. The full implications of the Google settlement and the meaning of its arcane language are a continuing experience of discovery and learning. As we live with the settlement in the years ahead, we are all going to learn together what it really means. An author may years from now find that the Google settlement is not for her. She may want out. She may have no choice.
The Revitalized Author. Authors frequently assign copyrights to publishers, and the publisher may have been happy to join the Google settlement. However, some publishing agreements allow authors to reclaim their rights in the future. The author may become the new rightsholder and not share the publisher’s sanguine view of the settlement, but the deadline is past. The publisher’s early decision locks out the author’s later choice.
The Supportive Family. Copyrights last for many decades, but Congress carefully included in the law a safeguard to protect authors and their families. If the author transfers the copyright in a book to a publisher “for the full term of protection,” the law effectively says “not quite.” The author has the right to reclaim the copyright, usually 35 years after the date of the transfer. If the author is deceased, the family can reclaim the rights. Congress was deliberately and wisely acting to protect against giving away a copyright in full. The contract with the publisher cannot waive that right. What about the contract with Google? Assume I am the author who transferred the copyright to a publisher. The publisher happily included my book in the Google database. Meanwhile, I pass on, and my family steps up as the new copyright owner, but they have a different view about Google. Their power to remove is long lapsed. They may be entitled to the stream of revenue associated with my book, but the publisher’s early decision commits them as a participant in Google Books for years to come.
The agreement does relieve some tension through the concept of “excluding” a book. This is the last chance for rightsholders to show some independence. Rightsholders would, at any time, have the right to “exclude” a book from being made available for some or all of the services of the Google Books project. The author may notify Google to cease allowing consumer sales or to exclude the book from subscription services. Nevertheless, the book remains in the database, and the rightsholders (the current and future owners) remain entrenched with Google. Indeed, “excluding” certain services will never lead to deleting the book from the research database, where Google and other authorized users may continue to access it for various research and administrative uses.
What is the concern, you might ask? I am a proponent of choice, and I generally like the fundamental equation of copyright law. I like that authors can negotiate deals, and that authors and families may reclaim some copyrights. The settlement undercuts that bargain to Google’s advantage. Rightsholders may indeed receive revenue from many Google uses. Choosing to exclude the book from some uses may voluntarily waive income possibilities, but the book remains in the database for many other possible Google services, ranging from information retrieval to tracking trends in research and publication. Keeping the book in the database also positions Google with a competitive advantage to offer that book anew once the copyright expires or when yet another rightsholder with a different perspective enters the picture.
The constrained options for authors and rightsholders defy the traditional contours of copyright. Rightsholders may have rights to revenue, and they may “exclude” some uses of the books, but the choice to shake free to the Google settlement is a rapidly waning option. The Google settlement is in some ways a trump card, outplaying traditions of contract and of rights carefully established by Congress.