The Opt In and Opt Out Confusion in the Google Book Settlement. Should I Opt Out?

Is OPT OUT a viable option?

Answer: Maybe. Other publishers, even today, charge far less than Google off the top, like lulu.com or scribd.com, who take just 20% of the price paid by the consumer, leaving you with a handsome, at this moment in time, 80%. If you Opt Out, then you are sure to preserve all your rights at law, with no chance of nasty surprises from the devils lurking in the details of this settlement agreement.

Personally, I deeply resent Opt Out. I do not care to play their game, or feed them my information. I do not owe anyone my data. They have no right to force me to feed them my data, or that of my clients, which they will then own and monetize as they wish.

The law simply does not require us to play this game.

Now that I've consulted a large number of leading class action experts and some of the top legal minds in the nation, most of whom are as confused about the Google Book Settlement as the rest of us, authors should note the following:

The rules set up by these two self-interested parties are deeply unfair to all the rest of us. The class action vehicle is wrong. This is legislation. It is not litigation.

The litigants have structured this as an Opt Out class action. That means, if their game does by some horrendous miscarriage of justice succeed, if you do not affirmatively Opt Out by their deadline, you will be sucked into a big 335 page publishing contract that will bind you individually and personally to both Google and to its expensive and useless creature, the Registry. This contract is full of bad, even outlandish, or just unnecessarily complicated and ridiculous terms that are not to the benefit of authors. But it is larded with perks and benes for certain privileged classes of people, to wit, publishers—who may well be enabled by the very fact of this new contract governing this aspect of your rights, to screw you out of your right to get your rights back from your publisher free and clear of any obligations to pay them a share of these new passive revenues. The other group to be privileged are those who play by Google's rules and register, thus so called "opting in" by signing up on the dotted line by their deadline. Allegedly, voluntarily.

This is an "Opt Out" class action but the litigants also invite you to "Opt In." What is this? Isn't this just an "Opt Out" class action?

I believe this is a deeply misleading use of the terminology "Opt In." The use of this term implies that this is the type of class action that will not bind you at all, unless you in fact opt into it. That is not the case. If you register, you will be bound contractually.

The class of people who are to be placed in steerage class, the "orphans" who refuse or for whatever reason—massive confusion and fear, for example—to sign on the dotted line, are to get a worse deal, disadvantaged compared to others, under this agreement.

Note that this is a totally non-negotiable contract. As far as I'm concerned, there is no such thing in America as a non-negotiable contract. Or rather, it may be non-negotiable, but in that case you are free to walk.

The only non-negotiable contract is the social contract. Congress can pass laws that you may never have read or agreed to, but with which you must obey. Courts can do that too, but they are limited to deciding actual cases and controversies between individuals, then stating what those cases reveal about what the law is. This goes way beyond that. These litigants do not have the agency authority to be dealing in people's property rights, or to be unionizing people for their own gain. That has nothing whatever to do with the "digitization is infringement" copyright claim they brought to begin with. It has only to do with the litigants own personal private self interest.

Opting In is the same thing as registering, and this apparently is the same thing as agreeing individually, one on one, to a three way contract between you personally, and Google, and the Registry. That means, if you go on line and register, that you are in grave danger of being bound forever by a contract you don't understand.

Don't be embarrassed to say you don't understand this contract. No one does. And if your understanding is "I'll take any money anyone is giving me" then you are probably an agent, and authors should know that the "agency problem" is extremely significant and, unlike the usual situation when agents are selling your book, their interest is not aligned with that of authors in this unique situation. The agent doesn't really care so much if the author's rights in a work are affected. Their interest is in money. Here, if everyone signs on en masse, they get a lot of money, aggregating their entire lists. Things other than money matter a whole lot to authors, like their rights in their work, but (potentially) not to agents. This is no aspersion on agents, its just an economic reality you need to consider when listening to agents about what they recommend in this particular situation. Their aggregate interest massively exaggerates an agent's (or a publisher's) positive reaction to this deal in a way that no longer aligns your individual interests to theirs as it normally would in a one on one publishing contract.

There is no informed consent to this contract. No one knows what they are signing in this. The plaintiffs are wholly incompetent to negotiate any terms of a publishing agreement for any individual or work, much less for all of them en masse. The process this rich defendant with its hordes of smart and rather nasty lawyers has chosen has been misleading, deceptive and abusive. It also under the surface fixes into law a ridiculously harsh, extreme, and exaggerated interpretation of property which, when held in the hands of individual authors, is almost always gently administered to allow tons of free and fair use and accidental but fully excused infringements. Now nothing is held to be fair use and all of the property is in the hands of a profit maximizer. The terms of this agreement show a control freakish ownership mentality about "their" precious property, down to every jot and tittle including heads ups about everything any competitor might ever do, or be thinking about doing. Copyright property to them means far more than it does to us—to them it is a right to spy and invade everyone's privacy and then capture all the gain for itself. If the netizen crowd thought they were socializing and deproperitizing copyright by supporting this, and Google, they really got it wrong.

The federal court system has been improperly used here to jam (1) a non-negotiable publishing agreement down everyone's throats for a profit maximizer to gain. And (2) to wed every single one of us, also on non-negotiable terms of uncertain effect, to a costly union.

This is at odds with all of copyright law and the settled understanding of everyone who ever wrote a book in America or signed his own personally negotiated contract.