Note: This is not intended to be a comprehensive solution. It’s a beginning. What I believe is the necessary first step.
1) Google scans public domain treasures from taxpayer-financed public libraries
2) Google sweeps up out-of-print non-public domain books in its digital looting of these public institutions
3) Google wants to strip out-of-print writers of their property rights for its own multi-billion dollar future private profit stream
Really. That’s it in a nutshell, stripped of pretty or truth-suppressing language.
Every single part of this scheme has been objectionable from Step 1.
1) Did Google compensate public libraries for the scanning? If they did, it’s still not enough money. Taxpayers supported these libraries for decades. Libraries stored these books and preserved these books for decades. Google comes along with its scanner and suddenly its private profit desire supersedes the decades of funding and care that went into creating and maintaining those collections? The answer to that question is No.
2) Google knew damn well that anything post-1923 is subject to Copyright. A company of that size simply grabbed books off library shelves like rioters in a looting spree without bothering to vet their Copyright dates? I don’t think so. Google is not stupid. Google planned to vacuum up everything from the very beginning.
3) Let’s get this point very clear: publishers do not own these out-of-print books. The writers who wrote them do. There is no discussion or compromise on this point, period. And any writers who are not members of that Jurassic-era tar pit known as the Authors Guild never granted permission to be represented as a class in its legal action. The Authors Guild does not speak for me, will never speak for me, and I’d sue the hell out of them if they ever claimed to speak for me. The Authors Guild is as a guilty as Google was in vacuuming up all the books. The Authors Guild thought it had the right to vacuum up all writers.
Now let’s look forward:
1) Is it societally valuable for all books to be online and searchable? Yes, it is.
2) It is valuable for writers for their books to be online and searchable? Maybe.
3) Should that function be under the control of only one private corporation? No, it should not be.
I don’t think anyone debates point one. It’s point three that’s the objection and the Gordian Knot.
To slice that knot, I propose the following:
1) Google spins off Book Search into a non-profit corporation. Call that the fine you pay for trying to suck up all the books, Google. You get to paint yourself all magnanimous and virtuous here, Google — the twenty-first century’s version of Andrew Carnegie.
2) This non-profit corporation builds a Book Storage platform that is open to all comers. Consider how Twitter’s APIs have allowed a ton of weird and wonderful and niche services to blossom around it. The same can happen with this.
3) Congress in consultation with the Copyright Office offers this non-profit corporation a period of time for a penalty-free safe harbor to offer up to twenty-percent of out-of-print books full-text content. This period, anywhere from three to five years, is the time in which this non-profit corporation must make every possible effort to track down and secure the legally-binding rights to these out-of-print books. Writers (and or heirs/rightsholders) can still choose to opt-out of it. Any book that cannot be secured in that period of time — which includes any rightsholder who chooses to opt-out — must have its content locked and all access prohibited. The reason why I offer twenty percent safe-harbor reproduction is based on my experience with book previews at Smashwords. A ten percent sample is often too little to judge the text, twenty percent is enough. A search result would point to a four-line snippet containing the search result, but the visible twenty percent would proceed from the start of the book, not twenty percent of the text surrounding the search result (this would too obviously lead to offering one-hundred percent of the text via shrewd searching).
4) The Book Rights Registry would be a department within this non-profit corporation. Its function is subject to audit by the Copyright Office, any writers group (National Writers Union, Writers Guild, even the Authors Guild), and any publisher (including “self-publisher,” if there is a work online). The Book Rights Registry itself is to also have a platform component that is open to all comers, with privacy restrictions (the online component would not publish a writer’s address, for instance, but it could offer an opt-in Contact button which would be valuable to publishers, agents, and others interested in licensing rights).
5) Each out-of-print work that has not yet been legally licensed is to have a very prominent banner placed on it advertising the fact the rightsholder needs to come forward, with a specific deadline date. This will open up the ownership search to serendipity, with readers tripping across books they might be able to connect to owners. (“Bob, did you know your book is online?” “Jane, did you see your deceased husband’s book online?”)
6) This non-profit Book Storage corporation is to act as Switzerland. If Google wants to enhance results in its search engine results, it can. If Bing wants to do its thing with search results, it can. The book data resides on the servers of the non-profit corporation and anyone can tap into it by any method — via search engine, via API, RSS, CloudRSS, or any other computational hook that’s devised in the future.
7) Access to the Book Storage content by for-profit entities is via a tax-deductible fee. The reason for this fee is to fund the continued operation of the non-profit Book Storage corporation. The reason for that fee to be tax-deductible is the price the Department of Justice must agree to for sticking its nose in with an obviously-biased point of view towards the deadlocked Settlement. In addition, making this fee tax-deductible would remove that fee from needing to be recoverable and charged against the income of the non-profit Book Storage corporation. For example, Google pays its fee for access. That fee is a write-off. The fee does not have to be recovered before Google’s cut of advertising fees flow to the Book Storage non-profit corporation.
7) Compensation. This is a sticking point and I don’t have a suggestion for this other than writers getting a majority split of all advertising that is tied to book display. All I know is that the current US$60.00 being offered is negligible as compensation to writers who don’t have a large body of out-of-print work. Someone with financial savvy will have to tackle this aspect. All I know is that compensation must be built into this model from the start. Writers should not have their work reproduced for free.
7a) One possible manifestation of an ad-based compensation model. Someone creates a website that aggregates books of a certain niche. Let’s say British mysteries set during World War I and in a certain locale, such as Birmingham. That website runs ads. A cut of those ads go to the Book Search non-profit corporation, with the majority of that cut flowing to the writers whose books are being aggregated at that website. Notice this: Book Storage is a platform that allows others to create audiences for its content. Books that otherwise would never be seen now have a chance at new life by being promoted by those who know the audiences for them.
8) Board of Directors. Ten members, with this breakdown:
Seats 1, 2, 3 & 4: In its first year, representatives from the nation’s largest public library systems. The terms for these seats is three years, non-renewable. Afterwards, these seats are assigned to smaller public library systems on a size basis.
Seats 5 & 6: Representatives from university libraries, with a term of two years, non-renewable.
Seat 7: Writer representative. In its first year, The National Writers Union, with a term of one year, non-renewable.
Seat 8: For-profit publisher representative, with a term of one year, non-renewable.
Seats 9 & 10: For-profit tech representatives, term of one year, non-renewable. These seats are not to be occupied by these companies in its first year: Google, Amazon, Sony, Apple, Twitter, Yahoo, Microsoft, Nokia, or Palm.
9) Transparency. This non-profit corporation must publish weekly status reports of its progress on the Internet for all to access. This would include the names of companies that have paid fees for access, the number of rights that have been secured, the number of rightsholders who have chosen to opt-out, etc.
I know there are other issues: privacy of readers, metadata, the one million-plus ePubs of crap, public libraries having access (I believe that should be free!), and much more.
But I’ve given the first step here: Make Google give up Book Search, divest it into a separate non-profit corporation that will act in the best interest of the books, the writers, and readers — not the best interests of a single company.
If Google refuses to do that, then we know that Google’s goal all along was to benefit only Google — no one else, and certainly not writers.
Now the discussion towards a true Settlement can really begin.
Let me close with a quote from Jeff Jarvis, author of What Would Google Do?
Google thinks its Snuffleupagus – big but cuddly and good – and just doesn’t realize that some people see it as a potential bully and so it has to act accordingly. With size comes responsibility.