Google Settlement Making Agents, Publishers Crazy

Under pressure of the May 5 Google settlement deadline, publishing professionals are frantically contacting each other and their lawyers to make sure they understand the settlement and the opt-in/opt-out choices confronting them. An informal sampling of their communications strongly suggests that a great many authors, agents, editors, and even lawyers are somewhere south of knowledgeable and some are barely north of clueless.

We can't blame them. Though the broad meaning of the settlement can be summarized fairly easily, as we recently tried to do here, it's the specifics that are stumping so many. For one thing, the paperwork is daunting for individual authors and crushing for publishers, requiring lists of titles falling into the opt-in/opt-out categories. For another, answers to many questions are far from yes/no. Mike Shatzkin puts it straightforwardly: "They are largely in the dark about what rights they own. "

The spectacle of otherwise sophisticated professionals calling each other and asking, "Do you understand it? I think I understand it. Actually I don't understand it" would be funny if there were not so much at stake. Publishers do not want to incur liability by making the wrong decision, and agents don't want to incur responsibility for giving their author clients bad advice. So we're all in touch doing our best to get it right. But getting it right is not as easy as it looks. Shatzkin points out that "The 'rights database' or 'contracts database' for most publishers consists largely of paper contracts in file drawers."

Publishers also have problems with books on which they unambiguously have the rights to print and sell copies. What they don’t know, without looking at the original contract, is whether the language in it gives them a shot at an ebook, a print-on-demand edition, or allows them to include some of the material in that book in an electronic database. Even looking at the book contract might not tell them if they have the rights to use artwork that is in the book in any other edition.

The danger is that those who are not completely sure what to do may, in their haste to make the deadline, make a blanket yes/no decision that could turn out to be a blunder.

I don't know if it's possible for the parties to work out an extension at this late date but now that we're all focused on the issues, some more time for everybody to sort out their rights would be welcome.

Richard Curtis