I received an excellent letter from Mike Castle in which he pointed out some mistaken assumptions in my earlier Google Book Settlement post. I wrote Mike asking permission to print his letter here, but have not received that permission (I assume he doesn’t live on the computer the way I do,) though I think he would appreciate having his excellent points made available here as soon as possible.

While the original assumption I made about the wholesale posting of book content on Google is false, the reality is not much of an improvement.

Mike pointed out that some book publishers have made an agreement with Google to go ahead and post portions of their books as part of the Google Book Search scheme. If you, the author, find 85% of your book on Google, it is likely that your publisher gave them permission to do that.

Whenever you can see more than a few snippets of an in-copyright
book in Google Books, it’s because the author or publisher has joined
our Partner Program and granted us permission to show you the Sample
Pages View, which helps you learn enough about a book to know whether
you want to buy it. This is something we do with a publisher’s
explicit permission.

Gotcha.

UPDATE: NOW GO READ THIS.

However…

Google’s book scanning scheme is still illegal. We were not asked prior permission to have our books scanned and placed in their database. They do this whether we want it or not. No publisher or author was asked prior to Google’s proceeding with this action.

While some publishers agreed ex post facto to give Google permission to publish large portions of our works in Book Search as well as their private database, some authors like me have not given publishers permission to extend to Google that right.

I did some of these works in the 1980’s. There were no electronic rights granted to my publishers for works created then, because these rights were generally not even on the radar of most book contracts. There was no internet market. There was no Kindle.

Moreover, on some books I had no contract at all. In the absence of a contract, the only rights transferred are First North American rights. That first edition in book form is the only use those publishers may make of my work. That includes that unauthorized Tolkien book for which I did illustrations in 2003. I never signed a contract for that. I never gave anyone electronic rights.

What this amounts to – Google scans our works to be used in an online database without our permission, and publishers settle without giving authors the option of opting out of that reuse.

Reuse fees are generally paid to artists, but not in this instance. While Google uses our work for “fair use” purposes, the publishers can then reuse our work and not pay for it by claiming the use on Google is “advertising”.

If an entire story of an author is posted in the Google search, and the publisher deems that “advertising”, the author receives no reprint fee.

A comic book story drawn by me in 1985, reused by DC Comics in a graphic novel today, would be paid for by DC Comics.

But that same story could be posted on Google search, and I would receive nothing for this use.

It’s nice that Google is only using tiny snippets of “in print” works, if they do not have the author or publisher’s permission, but the original Google settlement defines snippet to be as much as 5% of a book. Moreover, the use of material under the fair use statute is supposed to be for literary study or purposes of criticism. The teeny Google snippets are really about driving a search engine and advertising revenue. They don’t perform any other function. Scanning entire books and placing them in a database is not fair use, even if you only show the public snippets. Electronic rights are reserved for the copyright holder. That copyright holder is not Google.

That said, I have looked for these snippets of some of my in print works and they are usually just a few dozen sentences and no more.

But as I also wrote, for other books, my work is all over Google search. Did my publisher give Google permission or is that work deemed by Google to be out of print? (AND BTW, GO READ THAT LINK.)

Because if a work is deemed by Google to be out of print, then Google claims the right to post as much as 20% of an entire book.

They don’t ask my permission, they don’t ask the publisher’s permission. I should not have to go to Google and ask to exclude myself from this scheme, but according to Google, I do.

How does Google define out of print?

Out of print can be such a complex issue, entire paragraphs of contracts are devoted to telling authors what that means to a particular publisher.

What does out of print mean to Google?

Does it mean out of print for a year?

Does it mean not available for sale in a bookstore?

If I have a webcomic, but no dead tree copies available, is my work in print to Google?

If I let my work go out of print on purpose to make way for a new edition, will 20% of the 1000 pages of my comic suddenly show on Google? How does that work? Does anyone know?

After scanning all works, does Google then sit around like a vulture, pouncing to post as soon as they determine work is “out of print”?

Exactly how does it benefit the author to have 20% of all of out of print work on Google search? How does it apply to the “Information wants to be free” theme? What information is missed by not posting 20% of my catalogue on Google? And why does the author have to tell Google not to do that, when copyright law already tells them not to do that?

Since Google decided it can sell digital copies of my out of print work and keep a whopping 37% of the take, this forces them into the position of de facto publisher.

I never had a contract with these dudes, and I don’t know these people. But one day, every author in America woke up and found out that if Google decides our work is out of print – a term they never define (perhaps it is buried in that 300-plus page settlement) – then they are our publisher.

So, even if my in print work is in chunks on Google with my publisher’s permission, some of those publishers never got my permission.

And Google never got my permission to do anything else with my work, that’s for damn sure.

Thank you, Mike, for your excellent letter and for clarifying the issue. It is so much appreciated. I had heard that publishers had given Google some rights here, but had no idea they had decided that the new definition of snippet would be whole hog.

The fact remains that this is a rights grab: Google is forcing the digital rights issue on authors. Even if your work is in print, your publisher may make the decision to go with Google whether you are aware of the matter or not, whether your contract covers this matter or not.

Google is scanning commercially available books. They are posted when they are determined to be out of print, and Google becomes your new digital publisher for a fat chunk of the take.

I’m a little fuzzy about what happens if your work goes back into print.

Can you get your work back into print with a dead tree publisher after Google makes your digital book for you?

I do not know if the material I have found of mine has been determined out of print or if the publisher gave Google permission, but my lawyer is on the matter.

Thanks, Google.

UPDATE: THE OPT OUT deadline is today. Click here.