In publishing, increasingly the enemy of my enemy is my friend, but as in the game of Clue, one needs to keep a scorecard handy to figure out who is the friend, and who the killer, in the Library versus the Conservatory.
One of the thinly disguised fault lines in the Google Book Search settlement was the latent tension between the authors, represented by the Authors Guild, and the publishers. The thorny issue of which party has prevailing digital rights to older backlist titles published at a time when contracts either neglected to mention, or weakly addressed, the future revenue possibilities of ebooks has consistently failed to be brought to ground. The conflict has spawned some of the most incestuous conflicts in publishing in recent years, either between traditional publishing groups and new publishing companies, e.g., Random House v. Rosetta Books, or between authors’ agents and publishers, e.g. Wylie v. Random House. In the Google Book Search settlement, arbitrating a distribution of revenues between authors and publishers from the books was such a cornerstone that it earned a pole position as the first appendix.
Therefore, it is no surprise that the primary authors groups – the National Writers Union (NWU), the American Society of Journalists and Authors (ASJA), and the Science Fiction and Fantasy Writers of America (SFWA) – have united with the Authors Guild to decry the recently announced settlement between publishers and Google, which effectively ends the McGraw-Hill et al. lawsuit against the Google Books Library project. There is a touch of dark humor lurking, as the three groups making this announcement – the NWU, ASJA, and the SWFA – were vociferously in conflict with the Authors Guild through their participation in the Open Book Alliance while the Authors Guild was a party to the settlement proposals. Now that the settlement has been dashed, they are free again to common cause against the publishers.
The authors groups are calling upon the Antitrust Division of the U.S. Department of Justice – whose brief to the presiding Court on the final settlement proposal served as its death knell – to investigate the publishers’ deal with Google, which has not been disclosed to the public, for possible antitrust violations. The authors, quite naturally, are concerned that the publishers have reached a compact over books for which the digital rights are uncertain, or even at least as likely to reside with the authors as the publishers. In the absence of any public information about the agreement, there is no way to know if books contested by rightsholders will be preemptively claimed by publishers. A secretive deal is even less attractive to authors than the GBS settlement’s percentage-based division of revenue between authors and publishers, dependent on the publication date.
I applaud the publisher agreement with Google, as it moves the ball forward on making more literature available through search and discovery, as well as opening up a larger marketplace for backlist titles; for the same reasons, I have never been in favor of AG’s action against Google. But I agree with the authors groups on this: the key points of the AAP agreement need to be made public. There has been far too much conflict, over too many years, over too fundamental an issue, for this settlement to remain under cover of “business confidential.” I would say to both Google and the publishers: What are you thinking? The longer you maintain a veil over the terms, the more drawn out will be the antagonism of the authors. It also invites the three outsider groups – the NWU, ASJA, and SFWA – to throw support to the Authors Guild in its negotiations with Google in its residual class action, at present stayed with the Court.
Best for the parties to take the key points of this agreement outside, into the sunshine, for all to see.