I’ve been trying to beat the drum on the importance of the Google Books settlement for a while (see chez Reg “Is Google’s Culture Grab Unstoppable?”).

There are quite a few people objecting to the settlement, but no music publishers seem to understand that they are involved. The common reaction is that there’s no way that music, such as sheet music, could be involved because the publishers never gave a license.

Now come on. This is GOOGLE we are talking about here. They don’t think in terms of licenses, they think in terms of bully boy legal muscle and what they can jam down creators’ throats.

So here’s how I think it works. Libraries that (A) Google either effectively dominates or owns (like Stanford) or (B) are state-owned institutions that think they are protected by state soveriegn immunity statutes so they can allow private commercial copying of their in-copyright holdings (that they likely KNOW are acts of copyright infringement).

These libraries give Google permission to copy their holdings (and likely get some kind of indemnity back from Google and are, in any event, getting a release in the Google Books case).

This is the “license” that allows the titles to get into Google Books. So if you are a songwriter, composer or music publisher and your sheet music is published in a book, there’s a good chance that it’s in one of these behemouth libraries and there’s an almost certain chance that if it is in one of the Google libraries, it is in Google Print.

And if it is in Google Print it is almost equally certain that no one has told you about it or bothered trying to find you.

An Elaborate Scheme

Brewster Kahle (no friend of copyright in my view) summarizes why the Google Books settlement matters rather succinctly as it applies to orphan works, but the same argument applies to any publisher or author not before the court. We may not agree about much, but we agree about this.

Remember–this is not just a case brought by the book publishers and authors–it is that case but also includes a class action that was consolidated into the main case. The class action enlarges the plaintiff class and makes the settlement binding on essentially ALL authors and publishers unless they opt out of the class. Mr. Kahle’s view:

“After digesting the proposed Google Book Settlement, it becomes clear that the dizzyingly complex agreement is, in essence, an elaborate scheme for the exploitation of orphan works. The class action mechanism allows the Authors Guild (8,500 members) and the AAP (260 members) to extrapolate themselves to include millions of unfindable and unknowable rightsholders to orphan works. It is to this end–the certification of a class that includes the orphans–that the parties need the blessing of the court.”

Including Music Publishers in the Publisher Class

Consolidating the class action also appears to allow the Authors Guild and the AAP to extrapolate themselves to include many, and maybe more millions, of findable and knowable copyright owners, presumably the copyright owners of the types of works listed in the settlement documents and class notices.

So who is a publisher for purposes of the settlement? “The Publisher Sub-Class consists of all members of the Class that are Book publishing companies or are periodical (e.g., newspapers, magazines, journals) publishing companies that own a U.S. copyright interest in an
Insert or have published a Book, and their respective successors and assigns.”

What’s a “Book”?

“For purposes of the Settlement, a “Book” is a written or printed work on sheets of paper bound together in hard copy form that, on or before January 5, 2009:

• Was published or distributed to the public or made available for public access under the
authorization of the work’s U.S. copyright owner(s); and

• Was registered with the U.S. Copyright Office, UNLESS the work is not a United States work
under the U.S. Copyright Act, in which case such registration is not required; and

• Is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement.”

What do those types of works include? We are told that the definition of “books” in the settlement does not include sheet music. But does it?

“Books” do not include…sheet music…. But “sheet music” (in par. 1.16 of the Settlement Agreement) means “…(iii) written or printed works in which more than thirty-five percent (35%) of the pages contain more than fifty percent (50%) music notation and lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature)”.

So ask yourself if that description fits any book of sheet music, folio or tab that you’ve published that’s still in copyright. It seems like that definition is rather more flexible than it should be, and is certainly not a blanket prohibition on “sheet music”.

But wait…what about “Inserts”? “Inserts” are also part of the settlement and are served up in search results. “’Inserts’ include any text and other material, such as…song lyrics…[or] sheet music…if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book and, if U.S. works, registered with the U.S. Copyright Office.”

So while some sheet music may be excluded from the definition of “Books,” sheet music and lyrics are included in the definition of “Inserts” and Google will have the right to serve these up if you do not opt out or if the settlement agreement survives the fairness hearing on June 17.

http://www.googlebooksettlement.com/r/view_settlement_agreement

As Brewster Kahle says (regarding orphan works, but equally applicable to the effects of the settlement overall):

“I, personally, am amazed at this creative use of class action law. The three parties have managed to skirt copyright law, bypass legislative efforts, and feather their own nests–all through the clever use of law intended to remedy harms.”

I’m pretty amazed, too, but not surprised because this kind of back door, underhanded move is who these people are.

But if you’re like most music publishers–you never were consulted or had any idea that you were being dragged into this mess. There is still time to react, but barely. You can object at the fairness hearing, but you will need to move quickly.