At a July 28 event on the Google Book Search Settlement at the New York Public Library, Washington-based lawyer Jonathan Band alluded to the increasingly ugly national debate over health-care reform and asked a simple question: what made rights holders potentially aggrieved by the proposed Google Book Search Settlement think they'd get a better deal via the legislative process? If not this deal, realistically, what better solution, he asked, was out there? It was a sobering moment in what has, over the last few months, become an intensely polarized discussion.

Indeed, from the day the settlement was unveiled in October 2008, it has been portrayed by its supporters more as the work of visionaries than litigants—as a bold new model to save publishing for the digital era and a new standard of fairness. Opponents, meanwhile, have cast the deal as an illegal, brazen rights grab that could affect competition in the publishing business. But behind the headlines, behind the boosterism and the naysayers, we at PW were curious: how was the settlement playing with rank-and-file stakeholders?

So, we asked. On July 16, PW sent out a survey to readers of our e-newsletters. With some 890 responses and more than 900 written comments, the simple questionnaire yielded a rich sample of opinion. We didn't ask about free books, monopolies, the planned Book Rights Registry, orphan works or the great new digital library of the future.

We asked: who are you and what do you think about the settlement? What we found: tepid support for the deal, significant confusion, or indecision—and no shortage of hyperbole.

Tepid Support

If there is good news for the architects of the deal, it is that net support for court approval outweighs opposition—overall, 41% of respondents supported approval of the settlement, while 23% opposed the deal. Just weeks before the September 4 deadline for opting out or objecting to the settlement, however, it is notable that more than a third (36%) remain unsure of or indifferent to the settlement. Publishers (52%) support the settlement in the greatest numbers, followed by authors (42%) and librarians (29%).

Whether 41% percent overall support is good news for a deal with such broad implications is open to debate—and more than two-thirds of that support is qualified: 19% said they supported the deal “with reservations” while another 10% said they supported the deal “with changes”; just 13% of respondents said they enthusiastically support approval. On the other hand, 14% said they oppose the deal.

There were extreme comments from both sides: “My CEO helped negotiate the settlement. He is a smart guy, so if he's in favor, so am I,” commented one go-getter. “This will destroy the book industry,” offered one opponent. But there were a significant number of insightful, measured comments. “I'm generally in favor, but with fairly significant concerns about the slippery slope, the administration of the settlement and permitting Google too much power over distribution and content,” wrote one respondent. “Despite its flaws, the settlement is better than ongoing, protracted, disruptive and expensive litigation and continued unauthorized scanning of our books,” wrote another.

The comments also revealed a good deal of ambivalence. “I love that we may be able to find out-of-print books through a Google Search and then print them. I say that with my researcher hat on. I hate that Google will have a stranglehold on this market. I don't think Google's long-term plans are altruistic in the least,” noted one undecided respondent.

"A court is probably not the correct forum for resolution of this issue,” concluded another.

Standing

We asked whether respondents had standing to participate in the settlement—that is, whether they owned a copyright to a book potentially covered in the settlement. Some 39% said they did, mostly authors (57%) and publishers (40%). When the survey is reduced to respondents who have standing, the percentages change: net support rises to 53% from 41%. Opposition, however, also rises to 26% from 23%.

Notably, some 23% of respondents said they were unsure whether they had standing—hinting at the level of confusion surrounding the settlement. In comments, some said they didn't know what it meant to have standing; others said they hadn't yet looked into their situation. Some, however, suggested they were unsure who owns the copyrights in question. “Even though I'm an author whose work has been posted by Google, I don't know if I have standing in the suit or if only my publisher does,” one author commented. “E-mails to my publisher's legal department have gone unanswered, so I'm really in the dark here.”

Because they are a party to the suit and chief architects and proponents of the settlement, we also broke out the 86 respondents who said they were members of the Authors Guild—just under 10% of the entire sample. Not surprisingly, a higher percentage of Authors Guild members favored approval of the settlement (62%). Still, we were somewhat surprised that less than a quarter of Authors' Guild members we surveyed “enthusiastically supported” the settlement (24%). Some 19%, meanwhile, opposed the deal—four brave members said they actually planned to formally object to the settlement.

Librarians offered another interesting window into the settlement—only 3% said they had standing to participate, and librarians are largely not party to the deal's approval. We included them, however, because the settlement could not exist without them—they provide the books to Google to scan; they curate millions of out-of-print volumes, often with public money, years after publishers and authors have walked away from them; and they are a major part of the deal going forward, as they will comprise the market for institutional subscriptions.

Overall, the greatest number of librarians (37%) said they were undecided, while 29% supported approval, and 21% opposed. Librarians were most notable in the comments, where they voiced concerns about pricing, orphan works, privacy and public access issues more prominently than other respondents. That suggests to us that librarians are indeed fulfilling a vital role in the settlement process as a public voice.

Notice and Confusion

Some 66% of respondents said they were “very” or “somewhat familiar” with the terms of the settlement, while 23% said they were “vaguely familiar.” Some 13% said they were “not at all familiar.” The level of engagement among those with standing is considerably higher, with 86% saying they were “very or somewhat familiar” and less than 1% “not at all familiar.” Two-thirds of those with standing said they have been sufficiently informed to make a decision on whether to participate in the settlement. We did not ask readers how they were notified or became aware of the settlement—whether through the mail, or the media.

It became clear, however, that being familiar with the settlement doesn't necessarily mean understanding it. “It makes me nervous, I don't understand it, I don't know what to do, and I don't have time to read through all of the info,” noted one respondent. “No one really seems to be able to explain, clearly, what is about to happen,” wrote another. Said an author: “I have not talked to a single person who is not confused by the settlement. Not one. Even my agent and publisher think the wording is as clear as mud.”

Action

Overall, a surprisingly high number (61%) said they planned to take no action at all—roughly a third (32%) said they will take no action while 29% said they haven't yet decided if they will participate. That number is inflated, however, by respondents who do not have standing—because without works to claim, respondents have fewer options; they can file comments, but otherwise have no need to act. When limited to those with standing, participation levels rise considerably, but still not to high levels. Just over half of those with standing (55%) said they have or will register to assert their rights by the January 5 deadline—rights that include receiving a $60 payment from Google if their book has been scanned.

Consider this: if Google has set aside $45 million to pay rights holders for scanned books, our survey suggests they may end up paying just over half of what they budgeted. Why not register and get the check? In comments, respondents suggested that their individual books had so little value to them they couldn't be bothered to engage with a 300-page legal document or to fill out a simple form. “The financial impact on me is so minor, that it doesn't seem worthwhile to take action,” wrote one respondent. “The settlement doesn't grant authors enough compensation,” added another. “A settlement that amounts to paying each author for the price of one copy of each book is insane,” concluded yet another.

Opt Outs and Objections

While a quarter of respondents with standing said they opposed the settlement, just 12% said they either have opted out or plan to opt out. Overall, Some 5% said they will let the court know they disapprove of the deal, with some saying they would file comments (2.3%) and others saying they have or will formally object (2.7%).

A significant number of comments, however, maintained the plan should be opt in rather than opt out. Ironically, this shift in the copyright burden was part of the publishers' initial suit against Google. AAP lawyers argued that Google's original opt-out provision “turned copyright on its head,” an objection the organization gave up to settle, but that many constituents apparently have held on to.

“The settlement was made by organizations that do not represent me, did not inform me, and assume my support if I don't send them an objection,” wrote one outraged respondent. “The opt-out is in direct contradiction to U.S. copyright law,” writes another. Those that did opt out, meanwhile, despite the benefits of being in the settlement, said they did so mostly for moral reasons—they didn't want Google to benefit from what they saw as malfeasance in scanning their books. “I believe that Google should be punished for what they did,” one objector wrote. “I'm being robbed,” wrote another. “This will do nothing to help my bottom line, but Google will thrive.”

If the deal is somehow not approved and litigation continues, it will be interesting to see whether publishers resurrect their objections to the opt-out provision.

Why We Fight

Perhaps the most surprising result came from a simple but provocative question: we asked whether respondents supported the filing of the initial lawsuits, whether they believed the scanning was fair use or illegal, or the suits were ill-advised or well considered—for whatever reason. Notably, less than half of all respondents (49%) supported the original lawsuits.

By constituency, librarians were least supportive of the suits, with only 25% backing them. However, support for the lawsuits was surprisingly underwhelming even among authors (62%) and publishers (55%). On the other hand, just 15% of respondents said the suits were ill-advised or thought Google's scanning was fair use—still, overall a whopping 36% had no opinion. If one is going to propose such a sweeping class action legal settlement for the entire universe of U.S. copyright holders and sell it as an urgently needed blueprint for the digital future, shouldn't the underlying cause of action be more popular?

In the more than 450 comments on this question, many respondents invoked much of the same polarized language that framed the original lawsuits: piracy, thievery, unauthorized use, illegal. There was a heavy moral component as well: Google's “arrogant disregard” or “contempt for intellectual property” was often cited. Some, however, expressed more support for litigating the original questions than settling. “I fully supported the lawsuits in 2005,” wrote one respondent. “I no longer support the Author's Guild after its attempt to parlay my rights into a class settlement.”

Conclusions

Your take on the results of our survey may differ our take is this: there is simply too much confusion and too little support for anyone to feel comfortable. For us, the survey highlights a fundamental question: for all the good and bad scenarios raised by the deal, was it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?

Whether it is approved after its scheduled October 7 fairness hearing, delayed, sent back for modification or rejected outright, behind the Google Book Search Settlement, there is a visionary plan for books. And, yes, this deal could very likely do every remarkable thing its supporters say it will do. The bottom line, however, is that, when the parties sued over a copyright question, no one asked, or expected these litigants to come back with a sweeping plan to transform publishing. And in the sprint to sell this deal, one simply has to look at how the settlement is being sold to know that the parties still don't seem to grasp how significant a challenge that represents.

“In the countdown to the October 7 court hearing on the Google Book Settlement, we are encountering heated rhetoric from opponents,” Tom Allen, Association of American Publishers' executive director, wrote in a June 25 open letter, “much of it hyperbolic and misleading.” Allen then proceeded to call the settlement “a revolution” that would “turn every public library building in the U.S. into a world-class research facility.” If claims of a brighter future weren't enough to persuade skeptics to get behind the settlement, there was fear. Allen warned that if the settlement failed to win approval, “authors and publishers will have no effective means to stop the widespread use of copyrighted material that is likely to follow.” That statement is a rather telling slip of the pen—since when did publishers regard the widespread use of copyrighted materials as something to be stopped?

In a PW Soapbox (June 15, 2009), Allen claimed the deal represented “the best opportunity for book publishing to confront the digital world without suffering the fate of the newspaper industry,” whilediscounting the settlement's opposition as the work of “groups that advocate weakening copyright in the digital environment.” Still, every statement of support seemed matched headline for headline by concern or opposition. In June, the American Society of Journalists and Authors announced its opposition to the settlement, as did the National Writers Union and the William Morris Agency—three groups hardly known for their desire to weaken copyright. Last week, an author, class member and class action lawyer, Scott Gant, filed a blistering objection. And, of course, as Allen suggested, the deal's would-be competitors are not about to sit this one out. Microsoft, Amazon and Yahoo have all objected. To say nothing of an antitrust investigation at the Department of Justice, and whisperings in the Wall Street Journal about possible congressional hearings.