See update at end ...

Monetizing the interwebs – google in doo-do

MUCH excitement in the media followed Rupert Murdoch's announcement that News International and the New York Times will - in a way as yet unspecified - charge for access to newspapers. Could it save the institution of journalism from death by a thousand cut-and-pastes? Or should we be looking for the answer to that puzzle in New York District Court on 7 October?

That's when Judge Denny Chin will open consideration of the Google Books settlement. This may only directly affect you if you have written a book, or at least a chapter. But Google's mission statement - "Organize All The World's Information" - gives a clue that it could set a pattern for all media.

Stencil graffito from the Regent's Canal: Mona Lisa blindfold... © Matt Salusbury & unknown artist

"Stop using my image" says the blindfold: only a "thin" copyright belongs to Matt Salusbury, who cannot claim fair dealing because the artwork by an unknown artist that appeared beside the Regent Canal as it passes through Dalston, north London, is not "'incidental" in his photograph.

Google's model for book distribution online is the same as it has imposed for music and video through its YouTube service: first they copy work and make it available without permission, then they offer a share of the revenue from advertising, or the option to take your work off their servers, if you should happen to find it (see June and July Freelances). In the case of YouTube, Google has refused to open the books to show how payments are calculated - a key demand that the European Federation of Journalists is putting to the European Commission.

Better some money than none, you may say. This writer will be registering book chapters with www.googlebooksettlement.com before 10 January 2010 - but the money will take ages to arrive.

We've read the first chunky submission to Judge Chin, from Scott Gant, who is objecting in his role as author of the book We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age. It is significant that he is an antitrust (competition and anti-monopoly) lawyer with some very significant clients. He offers a lot for a court to chew over. He points out that the settlement offers $60 for past illegal copying of entire books - whereas the minimum statutory damages for copying a work registered with the US Register of Copyrights are $750. He says it is illegitimate to intertwine a future business model with compensation for past copying, and much else more technical.

The National Writers Union, which represents US freelances, opposes the settlement outright. "Google is essentially saying. 'We are going to steal your work and sell it under terms we dictate unless you tell us not to', NWU president Larry Goldbetter said.

As we predicted, the US Justice Department formally announced on 2 July that it is investigating the proposed deal. Google rivals Microsoft, Yahoo, and Amazon.com in mid-August announced a coalition to oppose the settlement.

Meanwhile, the Microsoft-funded "Initiative for a Competitive Online Marketplace" is preparing a public relations assault on what it says is Google's monopoly of the online advertising business. Based at public relations firm Burston-Marsteller, the campaign calls for transparency and open standards for advertising software - which will amuse those who followed anti-trust lawsuits brought against Microsoft. The Justice Department is investigating this possible advertising monopoly, too.

It seems probable that it will take years for this to work out - it may well go as far as the US Supreme Court. It was the newest member of the Supremes, Sonia Sotomayer, who ruled, in New York District Court, that the New York Times could copy freelances' work, under the exception to copyright intended to cover dictionary publishers (see the September 1997 Freelance). The Supreme Court overturned that in 2001. The proposed settlement of $11 million net is going back to the Court (April Freelance), by coincidence on 7 October. The Court could rule that the settlement cannot include works not registered with the US government - which would mean you could get nothing from the Google settlement. Either way, the Tasini v Times settlement goes back to the court of appeal.

Update

A clarification: the proposed Settlement affects authors everywhere (except perhaps in Angola and Afghanistan and the like) because under it their works would be made available online in the USA. The plan is to exclude users elswhere in the world from seeing more than "snippets" of works covered.

At a European Commission hearing on the proposed Settlement in Brussels on 7 September, those who would represent "users" used this exclusion to argue for changes in EU Authors' Rights law to allow a similar arrangement here. More on that soon.

The relevance of the proposed Settlement to journalism per se is made clear by a report on a New York Times blog of a plan by Google to set up "micropayment"" schemes on behalf of newspapers as well: see here.

[Site map] Posted: 25 Aug 2009; Last modified: 13 Sep 2009 - © 2009 contributors
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