Why the Google settlement is anti-author—and why writers deserve four more months for opt-outs and objections
April 25, 2009 | 11:05 am
Welcome to TeleRead’s newest contributor, Michael W. Perry, editor of Inkling Books—an author who has officially objected to the proposed Google settlement! Among other works, Mike has written Untangling Tolkien. Please note these are Mike’s opinions and not necessarily TeleRead’s. – D.R.
That’s odd, because all three work for the Pennsylvania law firm of Boni & Zack (yes, I know, it sounds like a movie), and they’ve been your lawyers in the not-quite-settled copyright dispute that Google has been fighting for several years with the Authors Guild and Association of American Publishers. If you own a copyright in a book or a portion of a book published on or before January 5, 2009, then Boni & Zack was your law firm.
Don’t want Boni & Zack? Tough luck
Google’s FAQ so chirpily asks, in a bolded heading:
As a member of what’s called the “Author’s Sub-Class,” you’ve had Boni & Zack as your representatives. What the firm has settled on in this settlement will, if nothing happens to hinder it, seriously affect any copyright you might hold in any book published up to January 5, 2009. The impact is particularly hard if that book, however recent, has dropped out of print.
$30 million legal bill ahead?
“But I didn’t pay them a penny?” you assert, thinking that’s a telling argument. No, you didn’t. If fact Google has agreed to pay your lawyers up to $30 million if this settlement goes though. You can find that remarkable little nugget in the FAQ’s answer to, “How much will Class Counsel be paid?”
You and I might call these arrangements a serious conflict of interest. I suspect the lawyers involved call it “business as usual.”
“But if I do nothing and sign nothing, surely nothing will happen to me?” Ah, in your dreams maybe, but not in the U.S. District Court for the Southern District of New York, where this lawsuit will soon be decided. If you don’t opt out in writing by May 5 of this year—as I write this, that’s a little over a week from now—you’ve opted in.
That’s not even getting close to the end of the horrors that lie in this settlement. To object to the terms, you must “opt in,” or as Google so cheerfully puts it:
"No, you cannot both object and opt out. Only Settlement Class members may object to the Settlement, and people who have opted out are no longer Settlement Class members."
You’ll find that bizarre bit of Orwellian logic in this subhead: “Can both opt out and object?”
In short, opt out, and you can’t object. Opt in and your objections are likely to be ignored. You’ll then be legally bound by the very clauses you hate the most. [Cue spooky music.]
Is all lost? Not quite. This settlement isn’t completely settled. All that I’ve mentioned thus far are things that might happen and, most likely, will happen if substantial, organized resistance doesn’t develop soon.
Good news: A monkey wrench thrown into monkey business
There is good news. The Manhattan law firm of DeVore & DeMarco has throw a monkey wrench into this monkey business.
Friday the firm hand delivered a letter to the court asking that the remaining dates in the settlement be pushed back four months, particularly the critical May 5 date. That gives you and me more time to study this 300-plus-page monster. Even more important, this extension offers more time for legal objections to be brought to bear and substantial changes to be made. You can find their letter here.
I’m among those asking for an extension
And yes, I’m one of the seven authors and their representatives who are asking that the court provide all authors with this four-month extension.
How you can help
There is something you can do. Since the firm of Boni & and Zack is at this moment under legal obligation to represent your interests, you might contact it and politely but firmly ask that they support this four-month extension. You should direct your communication to Michael J. Boni and Joanne Zack at:
Boni & Zack LLC
Phone: 610-822-0200 Fax: 610-822-0206
15 St. Asaphs Road, Bala Cynwyd, PA 19004
Stress that the extension must be for four months and not a day less. This is a complex, legal document that, in conjunction with its attachments, is over 300 pages long. It’s not the sort of thing you and I could digest in an lazy Saturday afternoon. We need time to think.
Even more important, given that authors who don’t hear about it are rather brutally opted in, with the loss of rights that entails, there needs to be time for every author who’s published since 1922 and every heir of those authors to hear about this settlement and make an informed decision. That is impossible in this tight time frame. We’re delaying digital TV for four months despite the fact that every TV station in the country has been talking it up for at least a year. We can delay this scarcely mentioned settlement for least that long.
If you’re a publisher, you have you have your own "Counsel for the Publisher Sub-class" to contact:
Jeffrey P. Cunard, Esq. and Bruce P. Keller, Esq.
Debevoise & Plimpton LLP
Phone: 212-909-6000 Fax: 212-909-6836
919 Third Avenue, New York, NY 10022
Perhaps even more important, you may also want to send a copy of your remarks to the court. The judge will be the one who makes the decisions that matter. He is the Honorable Denny Chin and you can contact him through:
Office of the Clerk, J. Michael McMahon
Phone: (212) 805-0096
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007
Do it soon. The court is likely to hold hearings on the request for an extension early next week. Both the law firms above will be called on to participate. We don’t want them to continue to be little more than faint echoes of Google’s lawyers.
Again, I’d stress being polite but firm when you ask either of the two law firms to support a four-month extension. My hunch, based on the documents I have seen, is that they’ve simply been outgunned by Google, ranked 150 in the Fortune 500. Your call, email or fax could provide much-needed backbone. Remind them that failing to represent our interests for whatever reason constitutes gross professional misconduct. Remind them that only the tiniest fraction of the class they represent has even heard about this settlement.
(This blog post is released into the public domain by its author and may be freely republished with attribution in print or online.)