Bloglike Stream of Consciousness Rant on Google Settlement I

The anodyne statements of the professional bureaucrats trying to jam this thing down our throats really peeve me. Quite frankly.

If your book is still in print, your publisher will do this stuff. They won’t like doing it, but maybe if they are very big and have good dbases and interns they'll manage. Smaller fry with long lists will be burdened the most. However, when it falls out of print, then you WILL have to do it, at least if you want to control your rights and get your money, as, after all, you should. Also, if you think you didn't grant these rights to the publisher, you'd better race to the registrar and say so.

Or, on the other hand if you just don’t care, and don't mind Google keeping all that they make off your book, because you feel that Google is your special friend or you just want the book to be up there, then you can ignore this.

God what a hassle. Here goes.

To get your Google revenue and claim your ownership, all owners of rights—authors, agents, and publishers—have to log on to Google’s Book Rights Registry which is at googlebooksettlement.com.

Whatever you do though don’t go to Google Books Partner, much less sign that “click-here-and-sign-your-life-way-with-nary-a-clue-about-what-you-just-agreed-to” button, connected to a publishing contract, at the very end of the “Yes! I DO want to be a Google Partner” series of suck-you-in-and-commandeer-your-data screens. Which has got to constitute some kind of unfair trade practice ....

Registering is something that you, as an author, will alas need to do if this thing actually goes down. Which I hope and pray it does not. It might not. The whole thing is up and down unconstitutional and copyright infringement, so far as I am concerned, so maybe the world will wake up to Big Brother’s dastardly collectivization scheme here. Anyway, if it DOES go down, then you will need to register. Especially if your publisher is doing the same, long after they’re not really publishing anymore, in order to try to snorkel up Google money first, which, by all rights, ought to be coming to you.

In your role as: (1) author or editor of books (including co-author), (2) author (or “contributor”) of any part included in other books which you or your publisher or agent let use your stuff, (3) agent if you are an agent with an interest in books, or (4) publisher who got a grant of online display rights sold in the ways that Google plans to sell them. Whatever those are. Pardon me while I leaf through those 385 pages of “Settlement Agreement” again.

This lovely new entity for everybody to register their claims of ownership to books, and pieces of books—is essentially a hostile takeover of the U.S. Copyright Office. But in a much, much bigger way. Bigger, more glorious, and far more Orwellian. I sense deconstructionist glee behind this, and satanic malice. It’s called, the Book Rights Registry (BRR). I prefer to refer to it as Google’s Raptor.

This means, you must dig out all your contracts and read them. If you have them. I realize this is torture but you must do it. Be careful to pay special attention to the grant of rights, reservation of rights, “out of print,” reversion, termination, electronic licensing, and electronic publication royalty clauses. First, do that on each of your book contracts. Then repeat, as to each licensed edition of each of your books. What do I mean by that? This basically is any book that ever might migrate into a university, possibly any U.S., library. U.K. editions, large print editions, trade or mass market paperback editions—anything that displays your text. You probably don’t have all those licenses. But your publisher might have some.

Though I doubt it. Because your contract probably says they don’t have to keep any records of anything about you, or your damn book, past 2 or 3 years back. Did they, oops! accidentally convey online digital as a “subsidiary right” to a licensee? (They shouldn’t have, if they were competent, though frankly, not all publisher licensing departments know what the hell they are doing. Lawyers don’t scrutinize those things. Why should they? They’re just bureaucrats back there, looking for whatever fee is coming their way by shoving along paper. Yes, yes, I agree that’s what lawyers are too, especially the jerks who devised this critter, people distinguished primarily by how they stand to gain—$30 million just for the current litigation part alone—and for their willingness to say or do absolutely anything, however unethical, for cash. Which, in fact, tends not to be true about the many simple, honest, humble, ethical good people who man licensing back offices, so please don’t mistake me here for saying I want any lawyers messing with any of this. I’m just curious to see later, as we probably never will, what the New York to Washington DC trade association mafia all wind up cranking out of the Google Raptor, in the end—which is to be “structured” as a “nonprofit,” of course, basically meaning they get to pay themselves as much as they get away with and never have to turn a profit.)

If your publisher did convey online display rights to a licensee, gee. That’s really too bad. Because then that licensee will get to lay claim to your Google money, if they file. Of course maybe they had some really live plans for online display rights, and actually paid good money for the privilege of “owning” and controlling them. Probably not—most likely they just snuck that phrase, in vague references, into the contract form, when no one was looking. But still. Maybe you’ll get lucky and they won’t file. If they do, then you get to go squabble about it in arbitration at Google’s Raptor. Oh joy.

On licenses. Well, you gotta get hold of all of ‘em. So, try phoning your publisher up demanding a copy of all exclusive licenses, or nonexclusive permissions they ever did on your book. Including those that gave people the right to excerpt parts of your book in their books. Your publisher will just love you for that. See what they say. I predict three types of response: a polite spin on go to hell; a bitter laugh; or a click on the other end of the phone. I do hope you got that little clause that says that they have to hand over to you all licenses they do in all your contracts. NO? Oh well. You could just cop a tude to the Google Raptor people that you are the author and creator and as far as you are concerned you are morally entitled to own all rights in your work and be paid first on that.

Now, rinse and repeat, keyboarding in to Google every permission grant that you or anyone else ever made in your work. Do be sure to obtain and read carefully what the license said that permitted that in those books. THEN, be sure you also enter all of that anthology’s editions ever published. What?! You don’t even know what other editions that anthology was in?! Because the nonexclusive permission form which you or your publisher signed said that guy could publish any other editions he wanted without telling you about it, and (god forbid!) without paying you another fee for that additional, possibly quite lucrative use?! For shame.

Requests of publishers just to list for you all nonexclusive permissions into book anthologies they ever made usually result in their going totally blank. Blank, evasive, and very pissed off. At some point, you really have to sympathize with them. At least a little.

Now, make sure you finish all this up by Jan. 5, 2010. Some publisher or licensee may be doing this too, just as fast as they can, so they get to get whatever money might be out there, first, before you try to get your sticky hands on it. They might well be entitled to it. We may even hope so for the sake of mere avoidance of hassle. Then again, they might not. They’re really not entitled to it, if you didn’t, actually, specifically, grant them online display rights—you’re entitled to it. They never had any live plans for actually doing that kind of publishing in its exact particulars, now did they? Since all these fancy kinds of Google usages, like the four forms of licensing and all that stuff, and all the economics for it, really hasn’t even existed till just now.

And to tell you the truth, the economics still doesn't exist for it. Because what they are doing to you in this thing is paying you even lower crap royalties than print publishers pay on their far higher cost operations, then layering the whole thing up with undefined nets, and nets of nets, and cumulating nets you'll never know about, because the Raptor has absolutely no rights of audit or accounting in the Settlement Agreement. End result? It's Hollywood baby. You're a fully subordinated last in line net residuary. So all this paperwork is probably all for naught anyway.

Even if you were never especially prolific, you have to expect a lot of mistakes here. The “who the hell knows what we did here” Linus-like confusion bubbles floating over heads will be legion in this. You’ll make mistakes. Your publisher will make them. Their licensees will make them. Your agent will make them. Oh, and another thing. You probably need to tell Raptor to please pay your agent first, since that’s how most agents work, and have to, or starve. So tell Google’s Raptor to please send all the money not to you but to your agent first. Unless your game is to try to snooker your agent. The agent will then get the money, take off their small commission, and shortly send it to you. At least agents won't take off half, like your publisher will, or, as small and university presses are as we speak, busily trying to sneak into contracts that they are to get 75% or 85% or even 90%, and only have to pay you a sliver, based the fiction that this is “their” electronic publication and all you are due is a “net royalty.”

More later….