After Rejection, a Rocky Road For Google Settlement

Insightful analysis from Albanese, PW: "In the hours after Judge Denny Chin rejected the proposed Google Book Settlement, publishers and the Authors Guild said they were open to narrowing the scope of the proposed settlement in order to get a revised deal approved, while Google said it “would consider its options.” But after more than two years debating the settlement pros and cons, one thing is clear: the visionary arrangement once on the table is history. This morning, the parties will confront what comes next, and the rest of us what that might mean for the digitization of books. ... "

The rejected Google e-books settlement: What it means and what comes next

LA Times:

More than a year after giving it preliminary approval, U.S. District Court Judge Denny Chin on Tuesday rejected the Google Books Amendment Settlement Agreement, yet left a door open for the parties to try for a revision. 'The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement,' he wrote.

What's more, in his decision, Chin detailed several possible revisions, providing a roadmap for the parties if they intend to attempt to revise the settlement.

Will they? It looks like they may try. ...

"Although I am persuaded that the parties are seeking in good faith to use this class action to create an effective and beneficial marketplace for digital books, I am troubled in several respects," Chin wrote. He brought up several key issues that seemed to point a way toward potential resolution of the agreement, including moving the issue of orphan works and international copyright issues to Congress, privacy concerns and inverting the structure of the ASA so authors interested in participating could opt in, rather than being included by default. ...

Judge Rules Against Google Books Settlement

Good decision: Agreement needs an opt-in rather than opt-out in order to fully protect copyrights. That would also help get around the inappropriate fact of a publishers' org and the Authors Guild presuming to have authority to negotiate for all authors of out-of-print works, which they don't. Puts power back into the hands of true copyright holders. paidContent: "A federal judge has ruled against Google (NSDQ: GOOG) in its long-standing attempt to expand a plan to scan and then distribute millions of books online. Google was sued by the Authors’ Guild and the Association of American Publishers back in 2004, with the writers’ groups saying that the company’s Google Books site broke copyright laws. The two sides settled their dispute in 2008, but revised that initial settlement in fall 2009 in response to objections from the Justice Department and competitors, who claimed that the initial settlement gave Google too much control over the electronic distribution of in-copyright, out-of-print books. In an opinion issued today, U.S. Circuit Judge Denny Chin said the new settlement remained too favorable to Google. 'The [settlement] would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case,' Chin wrote. ... "

Turow & Authors Guild Not Just Out of Touch on the Subject of eBook Pricing, but also ...

on DRM, "piracy," copyright and other things that go bump in the night. Last month, Mike Masnick @ Techdirt: " ... as the Authors Guild continues to have out-of-touch, fact-challenged people lead it, it's only going to serve to drive younger authors away from the Guild. Smart authors today recognize the maxim that obscurity is a much bigger threat than piracy, and many have come to figure out that piracy is nothing to fear if you have a smart business model. If Turow and the Authors Guild really wanted to help authors, they'd focus on helping them understand new business models, rather than supporting ever more draconian laws that will do nothing to help and plenty to hurt."

Scott Turow and the Authors Guild Still Don't Get It

In the end, the free market always wins. PW: "Authors Guild president Scott Turow has praised Random House’s announcement last week that it is adopting an agency model for selling e-books. 'Book retailers have faced extraordinary challenges in recent years,' he wrote, 'a double whammy of recession and a shift to digital books that had cut many stores out. For anyone who loves bookstores, this is the best news out of the publishing industry in a long time. Random House's move may prove to be a lifeline for some bookstores.' ... "

Authors Guild vs. The Free Market

PW: "To mark the one-year anniversary of what it calls 'the Great Blackout'--when Amazon pulled the buy buttons from Macmillan’s titles to protest the publisher’s adoption of the agency model--the Authors Guild is doing a series of member alerts looking at 'the state of e-books, authorship and publishing. ... " Want to survive the sinking of a ship? Swim away from it before the suction drags you down. The Authors Guild seems to like the Agency Model a hell of a lot more than does the British Office of Fair Trade.

Agents, Publishers, Others Particpate in Useless PW Panel Discussion re: Digital Royalties

Frankly, this whole debate sounds like it was a massive waste of time. For all their bickering, the authors, agents and publishers involved seem to agree on one key idea: that in the long-term it actually matters what the "big six" publishers do as far as eBook royalties are concerned.

It doesn't.

Given how technology levels the playing field, and how the book publishing model has rapidly moved away from traditional print & bind distribution via brick & mortar outlets, the "big six" no longer possess an advantage and are not going to remain the "big six" for long.

As far as royalties go, virtually ALL of the start-ups doing the most innovative new work are exactly where the authors want them to be as regards royalties: 50% of net. A partnership.

But a partnership implies mutual risk. Thus the absence of large royalty advances from the emerging paradigm, which AG exec. director Aiken, as well as agents, clearly don't like, and which goes a long way toward explaining their love/hate relationship with the "bix six."

Authors Guild re: Wylie/Amazon

The Authors Guild weighs in on the Wylie/Odyssey/Amazon situation- and in doing so demonstrates a stark misunderstanding of American antitrust laws. They also, surprisingly, seem not to "get it" that in a free market the proprietors of copyrights (read as "authors and their estates") are entitled to dispose of those rights in any way they see fit, regardless of the "exclusivity" of any given deal. This is business, children, not Culture. Is the Authors Guild's position that Wylie's clients are too stupid to look out for their own interests? Wylie's deal could not have been put in place without their green light. Something tells me that the Nabakov and Mailer heirs, etc., and their advisors, are likely quite capable of making informed decisions. They, with their agent and his new imprint, have every right and perogative to proceed as their ambitions and logic dictate.

Authors Guild, Turow, Piracy Redux

Re: My earlier post of today regarding piracy and Authors Guild prez Scott Turow. A friend just sent me this open letter to Turow written a week or so ago by Brian O'Leary of Magellan Media Consulting Partners. O'Leary hits many of my same points, only better. Note especially this:

I do believe that there are markets in which digital book piracy is a net loss - college textbooks may provide the most direct example. But I also believe that there may be markets, and authors, for whom piracy helps improve awareness, trial and paid sales.

That’s why we started studying the impact of piracy on paid sales almost two years ago. On an admittedly limited sample (something we’d like your help to grow), we’ve found an apparent correlation between piracy and subsequent growth in paid sales.

Now, you recently told GalleyCat’s Jason Boog that “…the larger problem for us is the pirating of books”. I ask, simply, “How do you know?”

There are no reliable studies of the impact of piracy in the book business. Because our sample set is limited, I include our own work to date in that bucket. The studies that are cited most often are based on sampling techniques that try to track the instance of piracy, then apply an assumed number for “substitution rates” (lost sales).

The Government Accounting Office recently “assessed the assessments” of digital piracy and found them all lacking. That’s not the final word, but it’s an indication that conclusions drawn on the limited data available are premature, at least. ...

The Grateful Dead, The Economy of Ideas, And Reconsidering the Notion of eBook Piracy

I'm just now noting month-old comments from Authors Guild president Scott Turow citing the "pirating" of eBooks as a large problem.

Two points.

1) I wonder how he has quantified this. I mean, what's the methodology? Given the extent to which all the major players load their editions up with DRM, I'm skeptical of the risk.

2) More importantly, however, I wonder how much of a detriment piracy actually is. Are we even correct in viewing piracy as something we actually want to avoid? There's evidence that piracy (in my view: free word-of-mouth) grows reputations and thus fuels legitimate sales.

So, the question: Do we need DRM? The Grateful Dead used to create a dedicated space at their concerts for people who wanted to record bootlegs of the band playing live. They encouraged the exercise and, in effect, gave away their work (their "content") for free. In turn, the band's reputation/fanbase grew exponentially.

As regards books, per Michael Shatzkin, there's little evidence file-sharing reduces sales. Shatzkin points to science fiction writer Cory Doctorow who "does the best he can to give away as much of his content as possible." The result? Doctorow's sales continue to boom.

I am reminded of a statement in "The Economy of Ideas," that seminal 1994 essay by Grateful Dead lyricist, EFF co-founder, Berkman Center Fellow, and (now) New Street Communications Editorial Advisory Board member John Perry Barlow: "The increasing difficulty of enforcing existing copyright and patent laws is already placing in peril the ultimate source of intellectual property - the free exchange of ideas ... unbounded intellectual property is very different from physical property and can no longer be protected as though these differences did not exist. ... if we continue to assume that value is based on scarcity, as it is with regard to physical objects, we will create laws that are precisely contrary to the nature of information, which may, in many cases, increase in value with distribution."

Here is Barlow making the same point - click the center "play" button:

eBook Debate @ BookExpo

Farrar, Straus & Giroux president Jonathan Galassi and Authors Guild president Scott Turow just don't get it. The paradigm shift in book publishing is not something that can be "managed," because it is that most unstoppable and uncontrollable of things: a convergence of technology and markets. See the Publishers Weekly coverage of today's debate.