The Fiction Circus Interviews Professor James Grimmelmann





JONES:  This is Fiction Circus!  And we're here with Professor James Grimmelmann, who is a professor at the New York Law School and is writing a brief right now about the Google books settlement.  I believe you went to Harvard AND Yale?

PJG:  Yes, although not at the same time.  

JONES:  Alright, that's good.

PJG:  Here's what my friends said:  I also worked for Microsoft, but the Soviet Union dissolved before I ever had a chance to go there, so I couldn't get the trifecta.

JONES:  Alright, so we're with James Grimmelmann, an EVIL MAN.  And we're going to ask him some questions about this Google books settlement.  Before I ask you anything, I just want to do like a thought experiment.  Okay.  So my favorite book is a book called "The Secret of Santa Vittoria," by Robert Crichton.  I love this book.  I've read it many times.  There was a shitty movie they made about it in the seventies.  It's a great book. But it's out of print.  It's still in copyright, but it's no longer being printed.  What would happen if I were to take this copy of "The Secret of Santa Vittoria," scan it, and put it online for all the world to read because no one right now can currently read it?

PJG:  So, given what I've seen -- there's a lot of textbooks floating around online -- probably not all that much is going to happen to you.  Like, at some point, it would have to be a really big deal before anyone would even notice.  You have the .pdf up there, and honestly, there's so many .pdfs floating around on bittorrent and on file-sharing sites right now that its just going to get lost in the noise for awhile.  But maybe they make a remake.  They do that, and then Random House realizes, "oh this is actually worth something" and then they put it back into print, and then they are going to get upset about all those copies floating around.

JONES:  And what would they do?  Is there a penalty for that?  Are they gonna ask me to take it down?

PJG:  They'll send you a letter, they'll ask you to take it down.  Or they'll probably go straight to the file-sharing sites and say "get rid of it for now" and use the DMCA, and then maybe, if you kept on putting it back up, they would try to find you and actually sue you.  But that's sort of a lot of steps away.

JONES:  And if they were to sue me what sort of damages could they get?

PJG:  You'd be facing up to a $150,000 in statutory damages...

JONES:  That's more money than I've ever made, by the way.

PJG:  It'd be even worse, because then you'd have to pay their lawyer's fees, too.

JONES:  So just keep that in mind, world.  Alright, so now we're going to deal with a whole different scenario.  If you wouldn't mind just giving a rough outline of the case and telling us what's going on here.

PJG:  So basically, we go back a few years, and Google announces this deal with the University of Michigan and a bunch of other libraries where Google is going to send people into the stacks, pull down shelfloads of books, and scan them.  Google has these machines, we don't know too much about how they work, but basically people are flipping pages over one by one and they take pictures of them, and then Google takes the pictures and does some optical character recognition and has a gigantic database of page scans. Google was originally getting into this business so they could make a book searchable, the same way they make web pages searchable or news searchable, and this gave you an index of it.  You type a term in and you can find your favorite book on "Google Book Search."  But they weren't going to try and make the books themselves available unless the publishers said "okay," or unless the books were so old they were in the public domain.  This was originally just about letting you know which books said something, and where it was out there.  But even that was enough that the publishers and the authors got angry, and they sued Google for copyright infringement.  So this is 5 or 10 million books, times that $150,000 dollars, and it is a lot of money.

JONES:  So they're scanning these books for people to search, and they didn't have any clue that they would be facing a lawsuit, but now that they've found themselves in this situation, instead of paying the $150,000 dollars per book, they actually reached a settlement with the people who were suing them.

PJG:  Google had another option there which was to fight the lawsuit and win.  And a lot of law professors like me thought they had a pretty good case.  We were really cheering on Google in that fight because they were making a big "fair use" stand.  But yeah, like you are saying, back in October 2008, so last fall, Google and the publishers and authors come out and the announce:  "We've reached a gigantic, ground-breaking settlement.  We are going to now dissolve the lawsuit, Google is going to pay $125 million dollars for everything they've done so far, without admitting wrongdoing because they always say that, and then Google is now going to get the rights to put the books online and sell online ebooks.  And Google collects the money and sends the money back over to the copyright owners."

JONES:  So the people who brought this actual lawsuit in the first place were the Author's Guild and the American Association of Publishers?

PJG:  Yeah, together with a few individual publishers and authors.

FUTURE:  Who were some of the individual publishers?

PJG:  McGraw Hill was one and...I've got the list over there on my desk. I'm not going to give you dead air while I run over there and grab it.  McGraw Hill was the lead publisher plaintiff on their side.  

FUTURE:  So this was a lot of textbook people.  

PJG:  Textbook people, big publishing houses with fiction, and non-fiction, and trade, and mass market, and textbook arms.  You know, big, big places.  With the AAP, that brings in a lot of other places like university publishing houses and a lot of larger publishing groups.  

JONES:  I've got to tell you, I'd never heard of the AUthor's Guild before this lawsuit.  It was a little bit confusing for me.  Am I a journeyman?  I don't know what "status" I am in the guild, and I didn't even know there was a representative body.

PJG:  If you haven't heard of them, you're not part of them.  The Author's Guild is just a voluntary association, about 8 thousand authors...

JONES: 8 thousand?

PJG:  Yeah, and they don't have any special legal status.

JONES:  Okay, good.  I was worried.

PJG:  Yeah, they've got two jobs in life.  One job is they do advocacy and lobbying and contract review for authors.  You sign up with them and then you can send them your contract with your publisher and they'll go through and tell you which clauses are standard and which ones might need some attention.  And the other thing they do is they cause lots of copyright trouble.  You might also have heard about them from this thing with the Amazon Kindle, where basically they made a huge stink about text-to-speech and actually got Amazon to agree to delete text-to-speech from the Kindle for books the authors objected to.  

CARTER:  Because the robotic reading constituted a performance of the work.  Is that their argument essentially?

PJG:  That's their cockamamie copyright theory.  That you're making a derivative work when you have it robotically read aloud.  But it's really about any right they can grab on to exert some control over someone down the line.  The Author's Guild's business is basically to advocate for maximum control by authors.

FUTURE:  So they are a for-profit organization.

PJG:  They are non-profit, but they act very much in the interest of helping authors become rich.      
 
JONES:  Well, they help their MEMBERS.  Not so much all authors, but the 8 thousand members of the Author's Guild.

PJG:  That's the thing.  They really would like to be a recreated Stationer's Company.  They want to be the guild that all authors belong to that everyone is part of and that now can speak on behalf of all authors.  It's got lofty free-speech goals, also some pretty mercenary "let's make all the authors rich" goals.

JONES:  I SEE.  INTERESTING.  So how many people would you say were a member of this class who initially sued Google?

PJG:  This is the thing.  You've got the Author's Guild, and three named authors, and then three named publishers, but they are suing on behalf of a class of several million people.  

JONES:  Sure, but the actual like, people who were involved...

PJG:  The actual people who were involved in the courtroom.  Under a dozen.

JONES:  Under a dozen.  So these were the people who were party to negotiations?  Under the ambit of the non-disclosure agreement?

PJG:  Well, you've got more people because everybody brings in a fair-sized legal team.  But really around the table...

JONES:  Oh, we all know lawyers don't count.

PJG:  Lawyers only count 3/5ths.  No, when you go into the negotatiating room, it would be Google's lawyers, and the author's class lawyers, and publisher's class lawyers.  And they were the ones hashing all this out, on behalf of the millions of people who are parties to the class action.  

JONES:  So this takes place, what, in like a very nice hotel suite?  

PJG:  I have no idea where they did this.  Actually, I should ask someone next time I'm on a panel with somebody next time.

JONES:  Did they take them some place nice?  Like Hawaii?

PJG:  I'm sure it wasn't some place nice.

JONES:  Are they getting them drunk?  Dice?

PJG:  They were doing this for two years.  

JONES:  Two years.  Jeez.

PJG:  So this is probably actually a lot of basically windowless, small conference rooms in hotels or law firm offices.

JONES:  These 8 thousand writers have busy lives...

PJG:  These were really mostly the lawyers who were doing this.  I don't know that there that many people who had other lives to work on this and deal with it.

FUTURE:  Do you know offhand who the individual authors were?  You said there were only three authors.

PJG: Oh.  It's Herbert Mitgang.  Cultural critic and pretty prolific author.  Daniel Hoffman, who's also affiliated with the Author's Guild.  And some other people I don't remember.

FUTURE:  Those sound like non-fiction people.

PJG:  Yes, quite.  There was at least one fiction writer that I know of who was involved.

JONES:  At least one.  Good to know, good to know.

PJG:  "Fiction Circus," you've got to justify this somehow.

JONES:  So this took two years to do and then they reached a settlement right.

PJG:  So they announced this big settlement and then they bring it into court and they tell the judge: "Okay, case is all over.  Just sign here and it's all set."

JONES:  So why did they agree to settle?  What made them think they couldn't win?

PJG:  It's one of these things where it's not like the settlement is a compromise half-way between what each side wanted.  The settlement takes a total left-turn and is a huge far-reaching deal that goes far beyond what the the original lawsuit was about.  So the settlement is really about giving Google the right to sell these books.  It's basically creating a gigantic new online book business from scratch.  Google is a new bookseller, the authors and publishers have a new book distribution channel, obviously everyone around that table saw that this would be a great deal for all of them, it just took two years to work out all of the details.

JONES:  How much work did these plaintiffs do to determine the best interests of the class of authors and publishers?  Since I'd never heard of this settlement till it happened, how much outreach did they really perform to see what people thought?  

PJG:  Well, they really didn't do very much outreach to people actually in the class at all.  This is one of those things about how class actions work.  Basically, you're allowed to go and say: "Yeah, I know what's best for them and I'm gonna negotiate a good deal.  I don't actually need to consult with them."

JONES:  And that's pretty standard?  So there's precedent?

PJG:  And then what happens is if you negotiate a bad deal, members of the class can show up in court and say, this is actually a really bad deal, they weren't doing well on our behalf.  You get trusted up front, but then you have to prove you had the best interests of the class.  

JONES:  In that case, lets go to the actual meat and potatoes here.  What are the terms of the settlement?  What agreement did they hash out here, this Author's Guild on my behalf?

PJG:  What they arranged is that Google has all these scans, and now Google is allowed to take a digital version of your book and to do two things with it: they can sell individual purchases of this ebook, so you basically go to Google and you pay them some money and you get access to an electronic version of your book you can page through and read the same way you can read a few short preview pages of it on Google Book Search right now.  That's one thing.  And that's on an individually pay-per-book-you-buy basis.  The other thing is that they are going to sell a gigantic subscription to the whole database.  So, libraries who pay through the nose for this will get access not just to individual books, but to every single book that Google scanned, you know, all 7 million of them.

FUTURE:  The fees for that just go to Google, right?  They don't go to the original copyright owners.

PJG:  Google collects all the money.  And then there's a revenue split where Google takes money from the individual subscriptions, digital purchases, the institutional subscriptions, plus advertising money that it gets from pages when it's showing you previews.  It sends 63% of that money along to the copyright owners.      

JONES:  What if those copyright owners can't be found?

PJG:  Yeah, so Google doesn't actually pay anybody itself. Instead, the settlement sets up this thing called the "Books Rights Registry," which is a gigantic new institution whose job is basically to be the middleman. If an author who says "I don't want to have my book be included in the program anymore," you go to the registry and tell them that and the registry tells Google to take it out.  Going the other direction, Google sends the 63% to the Registry, and the Registry will shave a few percent off the top, and then the Registry forwards the rest of the money on to the publisher, the author, or whoever the current copyright owner is.  Now you can see there's gonna be an issue with this, like you just raised, which is: what if nobody knows who the copyright owner is anymore?  Maybe the publisher went out of business, and we're not sure what business now owns the assets.  Maybe the author died and didn't leave a will and now grandkids in six states own the copyright and don't know about it.  So, in that case, the money just sits there in the Registry.  The Registry hangs on to it for five years, at the end of which, under some very complicated provisions...

JONES:  Which is about how long it takes the average writer to sober up, by the way.

PJG:  Some of the money goes to charity, some it goes to the Registry's other expenses, and some of it gets split among the authors who DID show up to claim their money.  

JONES:  So if you get in early, then you start getting the five-year dividends.  

PJG: Yeah, so you can basically get a 10% bonus on top of your own money, taking it by basically reaching over and grabbing it out of somebody else's pot.

JONES:  Now these books that are still in-copyright, but out-of-print, these are "orphan books," right?

PJG: Yeah.  Like if they were out-of-copyright, this would be much easier.

JONES:  How long does it take for something to go out of copyright?

PJG:  Copyright lasts now life of the author plus 70 years.  

JONES:  That's a long time.    

PJG:  Which means, you know, for none of us, are any of our works going to be out-of-copyright before 2079.  And that's if we get hit by buses when we leave this interview.  You've got books going back into the 20's that are still in copyright.  And that's a pretty long time.  In terms of how a book goes to being an orphan, it's not like there's some flag you raise like "this things an orphan now!"  No one ever really knows.  You look at the title page, and there's the information on a publisher and an author, and you don't really know who owns the copyright now thirty years later.  Maybe that company still exists, maybe it doesn't.  Maybe the copyright got sol sometime in the 1980's.  You don't really know.

JONES:  So what you're telling me is that there's no real clear definition of an orphan book its just something everyone believes in?

PJG:  There's a clear definition. An orphan book is one whose copyright owner can't be found by someone who wants to make a use of it and ask permission.  It's just that we can never PROVE that a book is an orphan.  You can prove that a book's not an orphan because you've got somebody jumping up and down and saying "hey, I own the copyright! I'll sue you if you do anything!"  But you can't tell for certain that something IS an orphan, because the author or publisher might crop up unexpectedly.

JONES:  Are there any benefits to this system as far as protecting authors and protecting publishers?

PJG:  I think orphan works are failures of the copyright system.  If it's an orphan work, than the public is not getting access to the book, because it's sitting there with this threat of a lawsuit hanging over it, so no one's making a use out of it.  On the other hand, it's not like the authors and publishers are getting paid for it either.  The orphan who can't be found can't be paid.

JONES:  But isn't copyright not just getting paid, but the right to control how your work is used and what shape it takes?

PJG: Think about it.  Take an orphan owner.  What kind of control is it if no one is asking you how it should be used?  You want to have your control so that it goes on the market and is sold.  Maybe you want to use your control to open it up to research by the public.  Maybe you want to use your control to put it in the public domain early. If its an orphan work, then you don't have that control at all.

JONES:  Well, no one's asking you.  If no one wants it, right, and you can't be found, then the de facto like THING you've told the world is "I don't care, or leave me alone," which I think is a clear position, and I think there's nothing wrong with that.  Alright, what about foreign rights?  Who gets those?  Foreign books that were once published in the USA...

PJG:  This is another thing.  For foreign authors whose book was ever published in the US there's a US copyright interest, and so presumably you can enforce that US copyright interest.  But if DOMESTIC authors may not know about their copyrights here years later, foreign publishers and authors are even in a less -- it's even harder for them.  Many of them find out about the settlement and are like:  "What do you mean this is going on in the US?  I had no idea!  I didn't even realize I had US copyrights!  CUT IT OUT!"

JONES:  Are those books considered orphans?  

PJG: They're not classified either way.  Some of them are almost certainly orphaned.  tHe whole international thing makes it even harder to find people.

JONES:  Because it seems to me that the only way that a book can actually be an "orphan," is if there is a huge corporation that owns all of literature and is trying to publish it all, because otherwise there is no "foundling home."  There's no opposite of an "orphan," unless there's a way for these books to be adopted on a mass scale.  So it seems to me that the whole idea of "orphan literature" presupposes something like what Google is doing.  Otherwise, you've got books that are either copyrighted, or NOT copyrighted.  In which case, copyright law seems pretty clear.  The owners of these RIGHTS ought to be able to control what happens to these books.

PJG:  That's the maximalist theory of copyright.  Give people lots of rights, give people tons of control, and it will all work out.  And, if you own a copyright, sure, it's your choice: you can throw it away and just disappear without leaving a forwarding address, and it's your choice, you have now deprived the world of the ability to make further uses of that book, but then, hey, that was a voluntary choice, same as the choice when you had the initial manuscript.  You could have burned it.  Your choice.  

JONES:  Many people have.  Gogol.

FUTURE:  Twice.  So...uh...it sounds to me like...uh...are you challenging...the settlement?

PJG:  I have concerns about the settlement.  I think it does some good things, but I think it does them in a pretty sketchy way.  

JONES:  So what licenses is Google going to have exactly?  Are they going to be able to make movies out of these orphan books?

PJG:  No.  Google gets only the license to sell these online versions of the books.  So they can keep running their search engine, they can sell you individual ebooks, and they can sell subscriptions.

FUTURE:  So they don't have the rights to any derivatives.  They just have the rights to their page scans.

PJG:  No.  And NO ONE has the rights to any derivative works from this.

JONES:  So those are still orphans technically.  

PJG:  Yes.

JONES:  So no one can say, find a really good book accidentally from the Google work and buy the rights to it.  

PJG:  No.  Which means foreign translations, the movie versions, comic book adaptations.  All that stuff.

FUTURE:  SO you can't make foreign translations?  You can't translate these books from their original language.

PJG:  You'd need to track down the copyright owner and negotiate with them, and yeah, good luck doing that.

FUTURE:  So Google deprives world of non-English versions...

PJG:  I mean it's not like Google's taking anything AWAY from the world.  We already didn't have that.

JONES:  I think something many people take exception to is the opt-out nature of this settlement, the idea that you are included in this clasas whether you like it or not UNLESS you represent that you exist and that you want to not be included.

PJG:  Yeah, so what happens is the authors and publishers get upset at Google, and the first thing Google says to them, back before they even file a lawsuit, is "if you don't like what we're doing, just tell us not to use your book, and we won't scan it."  And the authors and publishers say:  "No!  That's totally unacceptable!  You're making us opt out of your scanning program!  What we want is for you to NOT do it, unless we tell you that it's okay.  We're gonna go to court to prevent this opt-out system."  And then, like clockwork, a few years later, then they settle for an opt-out system, where not only will your work be SCANNED unless you opt out, your book will actually be SOLD unless you opt out.

JONES:  The Author's Guild existed before this right?  Google didn't just make the AUthor's Guild, right?

PJG:  No, the Author's Guild existed for a long time before this.

JONES:  Really?  Okay.  Were they like on hard times?  Were they panhandling and hanging out in front of the Google offices?  Were they like: "Listen, we represent at least 8 thousand authors.  Do a deal with us."

PJG:  Listen, this works though.  Google needs somebody to negotiate with it who can give it the rights to all the orphan works.  Anyone will do, but the Author's Guild stepped forward and volunteered, and because they filed the class action, they had the rights to all the orphan works to give away.

JONES:  It seems really convenient.  It seems like they got the exact opposite of what they were going for in a way that seems to really tie everything together and creates a real easy solution for Google, a massive company with huge leverage and capital at their disposal versus an Author's Guild that's probably the SMALLEST body that's able to bring a suit against Google for these orphan rights.

PJG:  I mean, I don't think the Author's Guild is pathetic and manipulated like that.  They have goals, and they created a system that brings the authors to a pretty significant seat at the table.  This is not a bad deal for authors who are around and can manage their copyrights and have something to deal with, like all the Author's Guild members.  It's just built on the backs of all the people who aren't around and who can't object.  

JONES:  I tell you, Stephenie Meyer has more power singlehandedly than the Author's Guild does.  So is there precedent to this opt-out system?  Is there legal sort of like precedent to an opt-out class?

PJG:  I mean, opt-out class actions happen all the time.  You know, you're promised that your memory is going to be denominated in 1024 instead of 1000, so the size of the hard drive is wrong.  

CARTER:  It says 200 gigs, but is it REALLY 200 gigs?

PJG:  Or some sort of false advertising lawsuit.  Or maybe the widget breaks and gives you cancer.  Like you have all these class actions, and people have a right in most class actions simply to opt out.  The court sends you a notice, and you say you're part of this class with defective hard drives, you can either be part of it, or send back this notice if you want to opt-out and pursue this lawsuit yourself.  So there's precedent for doing that.  What's crazy about this one, and what's relatively unusual, is that it's all about future rights.  It's not a widget that broke and injured ten thousand people and now we have a class action lawsuit to give them some money.  This is about taking authors and trading away their right to sue for copyright infringement that hasn't yet happened.  

FUTURE:  So let me ask you another thought experiment.  Say I published a book in 1930 on the sauce.  You know, I left all the rights to it to my heir in a will I wrote on a napkin, basically.  My book falls out print, Google decides "This is an orphan work, we can't find anybody."  They publish it, and it manages to make a significant amount of money just by being a Google book.  It catches on with the public just by having this scan available from the one copy Google is able to find.  This heir turns up from the Himalayas where he's been frozen in ice for a hundred years.  Google has now made all this money off this orphan book, which, you know, and the percentage has gone to the Book Registry, I guess, so they're holding it.  So this iceman could come and claim this money out of the Book Registry?

PJG:  So what happens if the iceman comes in, say it's a hundred years from now.  Well, Iceman...it won't be a hundred years from now, because the book will be public domain.  So someone steps in, and the book is still in copyright.  The Unfrozen Caveman Author can claim the last five years worth of money.

FUTURE: Only the last five years?

PJG:  Everything before that has been reallocated to other authors, to the registry, and to charity.  

FUTURE:  So it's not just a practical matter that the money is not there.  It's that he doesn't have a RIGHT to that money.

PJG:  He does not have a right to that money.

JONES:  So we're actually giving away his right to that money?

PJG:  Yes.  

JONES:  So how much would you say all these orphan books are worth?  As an estimate.

PJG:  I have no IDEA.

JONES:  Does anybody have an estimate?  It seems potentially they are worth, either nothing or...

PJG:  Individually, they are probably not worth all that much by themselves, but you put all of them together, and we are talking gigantic sums of money.  

JONES:  Like what?

PJG:  We're talking clearly billions.  But I couldn't give you an estimate as to whether we're talking billions, tens of billions, or hundreds of billions.

JONEs:  So it's possible that these books are worth hundreds of billions of dollars?

PJG:  That's actually on the high end, but we don't have a very good idea of what the long tail of books historically is worth because it's always been so expensive to keep a book in print.  We don't have a good idea of how much value there is out there to be had.  

JONES:  All this stuff.  Who knows what they've got?

PJG:  I mean, we know what books are out of print because we've got the copyright office's registration records, so we know what things were copyrighted.  

JONES:  So there won't be any surprises?

PJG:  No, there won't be any surprises.  No there won't be anything we didn't have any idea about, but there will be tons of things that we didn't recognize the full worth of that are suddenly coming back.  

FUTURE:  Can we go back to my caveman for a minute?

PJG:  Yeah.

FUTURE:  So I want to ask you. He can only claim the last five years of the money.  Could he claim the rights back?

PJG:  Yes.

FUTURE:  He could opt-out then?

PJG:  He could at that point take his book out of being sold and go control it himself.  So presumably, Stephenie Meyer is going to be controlling the price of her book very closely.

FUTURE:  That's who we're all here for.

JONES:  SO how much of these potentially hundreds of billions of dollars --

PJG:  That's probably too high.

JONES:  Who knows!  I'm throwing numbers at you, you're throwing numbers at me.  So how much are these rights being sold for.  I mean, you don't generally give away rights.  What's Google paying for these rights?

PJG:  So Google's paying 63% of all the money it makes.

JONES:  So there's no signing bonus.  There's no up front...

PJG:  Upfront Google is paying for all the stuff it has scanned so far.

JONES:  And how much are they paying for that?

PJG:  They are setting aside $45 million to pay 60 dollars a book for the scanning by itself.

JONES:  60 dollars a book.  That's the check Google's gonna cut you right now for what they've done.  

PJG: Yeah.  But that's just for them putting it in the database.

JONES: Are some properties worth more than 60 dollars a book?

PJG: Yeah, but remember, they are going to get paid additional amounts based upon what Google sells, and you could take your 60 dollar check, deposit it, and then opt out of the program completely.

JONES:  So you could do that.  You could just take the 60 bucks as your settlement for what Google has done, and then say: "No thanks, I don't want you to be my publisher."

PJG: Right.  The publishing part is strictly voluntary.  But it's voluntary on this opt-out basis where you're in it unless you want to be out.  

JONES:  Being as that anybody has the potential to be an author and lose their orphan rights someday, isn't this kind of a new law?  Isn't everybody in America a class of this lawsuit?

PJG:  Everyone who has written a book so far and had it published and had it copyrighted is in a sense, part of it already.  It doesn't apply to anything in the future. Google's not going to take any books from now on and be able to claim anything in the settlement, because you absolutely can't give away the rights to people who haven't been born yet and who haven't had a chance to object or anything like this.

JONES: So when...

PJG:  January 5th of this year was the last date...

JONES:  Everything after that....

PJG:  Everything after that Google can't get.  But they are going to go to all the publishers and say: "we'd like you to publish with us as part of this big new bookstore we've got.  Please do it voluntarily."

JONES:  Alright, so they're like... "Risk" has been set up and they got Europe in some strange draw.  That doesn't necessarily mean they are going to hold Europe.  Europe's really hard to HOLD.  A fine "Risk" metaphor.  But it still seems like its got the same overtones as a copyright legislation act.

PJG:  Yeah, it totally does.  This is effectively orphan works legislation.  This is on the ground a rewriting of what the Copyright Act says.  And if you go back to Congress, last session they were debating orphan works legislation.  They knew about the orphan works problem, and they were discussing what do you do to make these things more available in a way that's fair to copyright owners.  The legislation didn't actually pass, but they were talking about it actively, and there's discussion about bringing it back this session.

FUTURE:  They won't have to.  Cause Google saved them!

PJG:  Well, I mean, this settlement goes far beyond what the orphan works legislation would have done.  It also only covers books. So all the other classes of things that can be orphaned -- music, movies, photographs -- the problem is just as big as it was before.  

JONES:  Well, this does establish a precedent in some sense.  If you start scanning orphan music or start stealing orphan movies and you are BIG enough, what might happen is the government might turn over those rights to you and you can start selling them.  That seems to be difficult as a settlement that's fair to everybody that could potentially do that.

PJG:  Yeah, this whole thing has this kind of feel that well, Google did this and they've now worked out this private deal where they get the benefit of the orphan works to the exclusion of everybody else.  And -- I don't know -- maybe if this was done through legislation, it would have been a deal that was fair to everybody and not just Google.    

JONES:  What sort of packages are being proposed by legislation?

PJG:  There's nothing being introduced this time around.  But if you were to take this kind of settlement and think about what would make it fairer to all concerned, you might say, we want to make sure it's not just Google so that other people could offer books on the same terms. We'd want to have the revenues kept forever, not just for a few years, and certainly not turned over to other people who are piggybacking on you.  We would want to have concerns about not having books censored by the one company that controls all the scans. We want to have privacy guarantees for readers, we want to have a bunch of protections for libraries not having their special copyrights carved away.  Basically, you want to think about this from the let's-think-about-how-this-all-fits-together-for-the-good-of-society perspective.  Not just twelve people in a room.

JONES:  Yeah, I'm with you, man.  So is there anyone working to make this happen?  I mean, is it just dead now?

PJG:  Well, the settlement is still pending in court.  There's a deadline in May to file objections, and a deadline in June for a hearing, and there are various parties who are trying to do something about it.

JONES:  May's in a week, so like...

PJG:  Yeah, May 5th.  So.  My institute here at the law school is going to file a brief with the court, basically telling it about the orphan works issue and advising it of a lot of the concerns we've been talking about.  Also, a group of professors from Harvard who are going to propose putting all of the orphan scans into a trust for society's benefit.  The Internet Archive, Brewster Kahle's operation, archiving the web and scanning books, they've been doing a lot of stuff here, and there going to come in and intervene in the lawsuit, too.

JONES:  Now they're doing something interesting.  They are signing on as a party defendant, correct?

PJG:  Yeah, basically, they said: "if you are going to sue Google and the result of it is that Google gets this great deal, you should be suing us, too, so we can get the deal!"

JONES:  Yeah, yeah, yeah.  Exactly.

PJG:  "This is a lawsuit that it's great to be a defendant in!  We win!"

JONES:  Who can do that? Who can do that as well?  I think that's a great idea.  I'd like to be a party defendant in this thing.

CARTER:  Can we?

FUTURE:  Yeah, like, what are the court costs?  We'll pay them right now.

JONES:  You want to be our lawyer?

PJG: Well, we have no idea whether or not the court is going to approve this.  And Google and the parties have indicated that they plan to oppose multiple party defendants.

JONES:  They want the whole cake for themselves.  They are the main malefactor, and they don't think anybody else has fucked up as bad as they have.  They'll take all the punishment.  They'll take all of literature off our shoulders.

FUTURE:  They are Spartacus.

JONES:  They are Spartacus.  So what's the likelihood that Google will be successful in brushing the Internet Archive off their cross?

PJG: I have no idea what the likelihood of this is.  I think there are big issues in this settlement, and I'm going to try and stop it from being approved in its present form, but at the same time urge the court to find a way that it can approve some modified version of it.

FUTURE:  So what would your ideal settlement look like?

PJG:  My settlement would start from this one.  It would have maybe the same basic economic outline.  It would be completely non-exclusive, so that other people could assume Google's various payment and security obligations and do the same thing it did.  It would have provisions that protect privacy, that protect reader's first sale and fair use rights, that protect library's rights, it would have anti-trust oversight of the Registry in it, and it would have a more accountable Registry that was really operating in the interests of readers and society and was being watched carefully rather than just having a few author and publisher people running it.

JONES:  I mean, cause I've got a problem with this from a publisher standpoint. There's big publishers, and they've all go their piece of the pie, but if you're trying to be a new publisher, if you're trying to come into the publishing world, the way you do it is you find an out-of-print book that doesn't have all the love that it should, and you buy the rights for cheap, and you start putting it out.  Will it be possible to buy rights from Google on these works that they've scanned?

PJG:  Not in that sense.  In that way, none of these books will need new publishers because Google's going to be the publisher in that sense.

JONES:  Yeah, that's not fair, Grimmelmann!  That's not fair!

PJG:  This is a bad world for publishers who see their job as being printing books and distributing them.  

JONES:  Well, what about an electronic copy?  What if you want the right to an electronic, new published work, an out of print one...

PJG:  Then it's available through Google, it's not a good line of business for publishers anymore.  

FUTURE:  So in your ideal settlement, it would be more available to everyone, the orphan works wouldn't just default to Google.  If you wanted to step up to the plate, then you could claim them with as much legitimacy.

PJG:  In the world we're going into, the role of the publisher is to do good editing, to find good books that are worthy of being brought to the public's attention, and to do a selection and quality-improvement function.  The raw get-this-thing-to-the-printing-press role is a lot less important.

JONES:  That may be true, but at the same time, you may think you can do a better scan or better display --

PJG:  And that's exactly why this needs to be non-exclusive.  Somebody else who can do better scanning than Google.  Do something at higher-quality.

JONES:  Here's what I'm getting at: What I propose is, I think these rights should be available for auction.  I think Google, because of their crime, should have to run a two-year long rights auction where anybody -- you, me, anyone in the world -- can attempt to buy the rights out from Google, these orphan rights that nobody evidently wants, and to publish them to make Google pay to drive the price up on these books, money that the authors will eventually get.

PJG:  Now see that's very interesting.  One thing that I like about this is that it does actually take the problem of compensating Google for the hard work it's done seriously.  Cause they've done really good work in making scans and doing a good job of this in scale.  I also like that it also means that it's basically not going to be Google controlling this and it increases the revenue of the authors and publishers.  The thing that worries me is that whoever wins this auction is now in the same privileged position Google would have been under settlement.  Whoever controls it is going to be just as big a worry.

JONES:  Sure, but you're thinking about an auction in terms of who buys ALL of literature.  I'm talking about piecemeal.  I'm talking about there's gonna be stuff that Google's not gonna want.  I think this could potentially create an entire, burgeoning -- out of whole cloth -- electronic publishing marketplace.  I think this has potential to bring to light all these orphan works in a way that will allow people to -- as you said -- determine the worth of them and see what we've got.

PJG:  That's interesting.  If the auction really succeeds, and you actually scatter the rights to a bunch of different places, that takes care of a lot of the concentration power.

JONES:  I think big publishers could get on board with this, buying the rights to some of these dead authors that they'd like.  But I think small publishers could really have a crack at it, too, coalescing an interesting body of work that they could even speculate on.  You buy the rights to these books thinking that someday they might be valuable and you'll sell them back to Google when the demand goes up.

PJG:  This is interesting.  I need to think through how the compensation part will work and how you hang onto the funds, because you have both an upfront payment, and you have ongoing royalties.  It's interesting.  And I think this kind of "how can we structure this so that it does a better job for the reading public and authors and publishers" is an important question to be asking.

JONES:  Because, honestly, what's the rush?  No one's clamoring to read a book that they don't know about.  You know what I mean?  These things can wait.  I think we need to sort through what Google's done, see what they've scanned, and take a look at what they've got, before we -- out of some sort of fury and madness -- deliver these rights to them.

PJG: I agree with you there.  The settlement has been off in Negotationland for years.  They announced the settlement in October and they set the opt-out day in May.  There's no need to rush like that.  This is a huge problem, it's the future of copyright and books, and it's worth taking the time to get this right.

JONES:  Anytime somebody's trying to do a deal with you really fast, you know they're trying to con you.  That's how I do MY deals, so I know this.

PJG:  This is why you showed up asking for this interview ten minutes ago.

JONES:  So, in your expert legal opinion, what's the likelihood that the settlement, as it currently stands, will be accepted by the courts and nobody's gonna get dick?

PJG:  I don't have a good sense of the likelihood.  This thing is so unprecedented there's nothing to compare it to.

JONES:  Well, that's crazy.  Okay, back to your brief.  The thing that you're working towards.  Are you done with it?

PJG:  Oh no.

JONES:  How long do you have?

PJG:  Until May 5th.

JONES:  Much has been made over the fact that Microsoft has donated money to this research project.  Is that true?

PJG:  So, the institute here where I work at the New York Law School, has receieved a grant from Microsoft for some of our work on book search issues.  We're creating a website that will have documents related to the settlement, that will have space for public discussion, that will have basically white papers analyzing various aspects of the -- it's such a huge document that you need a lot of work to make it comprehensible.  And then we're going to put on events related to discussing the issues that it raises.  Microsoft was the first donor for that and we hope not the only one.

JONES:  I hope so too.  Do they have a dog in this fight?  Do they have any sort of interest?

PJG:  Microsoft had a book scanning program until a few years ago.  So, they pulled out of this market.  But it's definitely an area, I think, they'd be interested in.

JONES:  Why aren't they jumping on as a party defendant?

PJG:  I don't know.  I'm not in touch with their legal people.  I don't know their motives I don't know what they see their interest as.  They may have some other legal strategy and come roaring under the woodwork with it later, or they may really think this is not some business that they need to be into.

JONES:  Did you ever used to work for Microsoft, for instance?

PJG:  I worked as a programmer before I went to law school there.  This was back in 99-2001.

JONES:  So you have SOME idea of what they have in mind.  

PJG:  I have an idea of Microsoft as a very large company, a very large shambling company in which you had no idea what people in the next building over were doing.  I remember it as a very nice place to work and I had utterly no sense of its strategic direction.  I'm not sure that anyone has a sense of its strategic direction.  I'm not sure that it has one.

JONES:  Because I would hate to see what you're doing, which I take to be sort of legitimately awesome and necessary, I'd hate it to be tainted where people look at it and they say "Oh, it's just Microsoft funding a shot in the dark to stymie Google."

PJG:  Yeah, Microsoft has no control over what we say, they haven't tried to exert any, I'd tell them to go home if they did.  But I'm confident that they won't.  I'm doing this pro bono myself.  Other lawyers are working pro bono.  They are funding public awareness of the issues and not any particular legal decision.

JONES:  How much did they donate?

PJG:  $50,000 grant.

JONES:  I'm willing to believe you for now.  Did you get anything personally?

PJG:  No, nothing out of this.  

JONES:  Your office is nice, but it's not THAT nice.  So alright.  This rug?  Is this a new rug?

PJG:  This rug is from Ikea.

JONES:  Alright, alright.  Rug's from Ikea.  Story checks out.  

FUTURE:  You've got a lot of books in here.  Are any of these books part of this issue?

PJG:  This whole shelf here.  Law book publishers send out free samples to professors.  Basically, they are trying to convince us that we need their book so much that we're going to assign it to a hundred person class.  

FUTURE:  They send out law books?  That's crazy.  I know publishers send out free books.  I didn't know publishers send out fifty dollar, giant leather bound...

PJG:  Fifty dollars?  Ha!  This monster, $140!

FUTURE:  It's sitting on his desk.  His office is at 40 Worth Street.  

JONES:  If you're in the neighborhood and you're on hard times...

FUTURE:  If you got an orphan book and your Google check hasn't come yet...

JONES:  NOw Brewster Kahle.  That guy used to work for Amazon, right?

PJG:  I'm not sure.

JONES:  Well yes.  He did.  So I'm not going to ask you to speculate too much on his motives.  I know he's a big fan of the Kindle and I know that his scans are going to be displayed somewhere, probably not on Google if he's fighting them.  So how likely is it that they are sort of involved as a unit in this whole affair?

PJG:  Amazon obviously has a big interest in this case.  They are the other people who have done book search.  Their "search inside this book" feature is pretty powerful.  With the Kindle, they've got a great publishing platform.  Brewster has got his own interests.  Whatever he's doing, it's not going to be as some tool of Amazon, or in collaboration with them.  He really, deeply believes in making the public domain available to everybody and putting things out freely.

JONES:  So why hasn't Amazon jumped in on this if they've got such an interest?

PJG:  I don't know.  It may be that on May 5th we find out that they show up with a filing.  Again, I can't peek inside their mind.  

JONES:  It does seem interesting that the big players are choosing to let this one ride.

PJG:  This happens in lots of lawsuits.  People try and pull surprises out of their hat.  

JONES:  Do you think this is going to alter copyright law in America?  Do you think this is going to be some sort of global change?  Do you think this is going to precipitate some sort of lowering of copyright to maybe less than 70 years after the death of the author?

PJG:  This could be the beginning of some really big safety valve release.  There's a lot of pressure on the system with orphan works, and copyright law's been building up that pressure because the term's so long now.  So maybe this is, through a lawsuit, releasing some of that pressure and making orphans available.  Or maybe its the model by which Congress undoes a lot of the legal stuff and makes orphans available.  But I feel like this is where big changes in the copyright system are happening right now.

JONES:  What happens when all their scans get inevitably stolen by some foreign country or pirate syndicate and they really do become free and this revenue essentially STOPS getting sent to the rightsholders?  Is Google going to be able to protect their scans?

PJG:  My guess is that most of the valuable books are going to get knocked off the way we started this conversation.  You at home with a camera or a scanner and making .pdfs.  That's gonna happen much sooner than the whole database leaks out.  

JONES:  But it would be real easy to see, you just look at what Google's charging, and you just steal the most valuable ones.  You leave the penny books and you take the $50 books.  How's Google going to be a publisher and protect the rights of orphan books?

PJG:  It's the classic competing-with-free problem. How do you offer enough value that's worthwile?  And I think Google's trying to make a big play here where they have the big database.  They can do things where they link books to each other, if you type somebody else you just click on it and it jumps to the other one.  They are going to try and integrate it with their search, they are going to try to do everything they can to get people to read their book.

JONES:  Because it seems like Google if invests enough money in this, and some foreign body wants to destroy Google, all they have to do is just, with one account, back up the whole thing.  Then it will be free.

PJG:  Yeah, one account stealing all ten million books one at a time.  I figure they are going to notice that.

JONES:  If it's possible, it's possible.

PJG:  In the settlement they agree to a security plan that says they actually have to watch out for stuff like that.

JONES:  But what happens IF it happens.  If Google goes toast, bankrupt, or out of business, what's gonna happen to these scans if they suddenly become free before 2070.

PJG:  You don't even want to get into how complex the settlement gets about what happens if Google fails to fulfill some of its obligations.  There are whole plans for successors, and Google turning over the scans to other institutions.

FUTURE:  Like what, like what.

JONES:  We'll edit it out if it's boring.  We're interested, personally.

PJG:  Basically, if Google fails to supply both the consumer purchase and the institutional subscription service models, there are provisions that kick in that let the Registry engage an alternate company to supply them.

FUTURE:  That the Registry chooses?

PJG: Yeah.

JONES:  So that's why they made this Registry.  To potentially choose a successor if Google dies.  

PJG:  And to handle all the administrative stuff that Google doesn't want to bother with.

JONES: I see.  so they can be the linchpin and move the whole scan around and potentially give it to a better company if something goes wrong.

FUTURE:  You may have said, but is Google going to run the Registry or is the Author's Guild?

PJG:  The Registry is going to be half authors and half publishers.  You actually have to have a majority vote to do anything, so at least one publisher and at least one author have to agree.  

FUTURE:  So it's like a governing board.  Do you know who is on this yet?

PJG:  We keep on asking and no one will say.  So either they know, but they're not saying, or they haven't decided yet.  

FUTURE:  Who's your odds on pick?

PJG:  Uh....

FUTURE:  I mean would you say like a big mass market author or like a Proust kind of figure?  Like Don Delillo, or like Stephenie Meyer again.  Don Delillo or James Patterson.

PJG:  Personalitywise, I obviosuly can't see Delillo doing something like this.  No, I'm thinking you're going to see, on the author's side, somebody who is reasonably well-respected as some kind of critic, and then somebody who is not really an A list mass market author, but somebody who has enough credibility, who's published a bunch of books, they know the industry, and they've had to get out of writing full time.  

FUTURE:  So a critic and a B-list author.

JONES:  I got a question.  Now Google's big on rank, right?  Making sure that sufficiently large and important things show up higher in their search right?  That's their big, entire reason why they exist, right?

PJG:  Yeah.  

JONES:  Rank.  How are they going to protect books from invisibility?

PJG:  That's a hard thing to say.  Google will have a lot of power to pick winners and losers from among books.  I don't have a good sense about what elements they are going to use or what concerns they are worrying about.

JONES:  Are there going to be safeguards in place to prevent Google from altering text or implementing censorship on a wide scale?

PJG:  There are rules about what Google can do to the contents.  Google can't change this text they display in the books, and there are some rules about Google not censoring things for books.  Google can drop books for non-editorial reasons.  

JONES:  They can?  They can drop books?  They can decide not to include them?

PJG:  Yeah, but it's not clear for what non-editorial reasons.  If Google makes an editorial decision to remove a book, they are going to be public about it.  They are going to tell the the Registry and the general public:  "We are not including this book, because we don't want to include it.  We think it is inappropriate."  

JONES:  They haven't given any clear guidelines over what qualifies?

PJG:  No, they are reserving discretion over it the same way they reserve discretion over YouTube videos they don't like.

JONES;  So they are also buying the right to exclude things from search.

PJG:  Yeah, they will be able to exclude things pretty much at will, and the exact transparency of that is still up for debate.

JONES:  So it's not like it's a public service.  They really are creating a content management system with this where they...in ways...

PJG:  Yeah, it's a content management system.  They have got a big interest in making it have a lot of content in it, but they will have the ability to pull stuff out of it they don't like.

JONES:  Now, a book that Google owns but buries, right?  It's got the orphan scan. It's decided that it's not "appropriate."  What happens to that?  Why can't somebody...who gets the rights to put that online?

PJG:  Yeah, nothing.  Google could just hide the search results and make it hard to find.

JONES: So it's essentially a dead book.  We've decided that they're the most trustworthy body to take care of these books, and so they are able to actually delete a piece of literature.

PJG:  To be fair, these books are all lying around in the graveyard...

JONES:  Well, in LIBRARIES.  Not graveyards.  Libraries.

PJG:  It's the metaphor of the orphanage.  Google's going to come through and it's going to adopt a lot of them.  But it's going to leave a few of them behind at the orphanage.

JONES:  But insofar as they have the rights to it, no one else could adopt this book.

PJG:  No one could have adopted it before.

JONES:  Well they CAN.  If it's an orphan and you don't get CAUGHT, you could still take an innapropriate book and put it online...

PJG:  The same thing will happen now.  If it's an orphan and you decide to scan it, it's not like Google can sue you.  Google doesn't own the rights in that sense.  

JONES:  So what you are saying is that all these orphan books that Google has, right, there's no way Google can sue you for stealing their orphan books.

PJG:  Right.  But the original orphan owner could still be out there, Unfrozen Caveman Author, who shows up and sues you, same as they could have before Google comes along.

JONES:  But Google's protected.  They can't sue Google, but they CAN sue me.

PJG:  EXACTLY.

JONES:  Alright, well, I'm really worried.  You didn't really like, assuage any of my fears.

PJG:  Well, GOOD.  You should be worried.

JONES:  Well, thanks for your time, and I appreciate everything you had to say.  Good luck on your brief.

PJG:  It's been a pleasure.

JONES:  Thanks for coming.


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