Copyright Wars, Indeed! Steve Jobs, was given a “Fake Quote” by a writer at Newsweek magazine. Daniel Lyons writes: “Music used to be sold in quaint, little places called ‘music stores’, shipped on discs, and controlled by record labels. Now it’s sold by a software company (Apple), shipped as digital bits, and controlled by me. Movies are headed that way too and soon I’ll be running that business as well. Publishing; you’re next. In our brave new world, whoever controls the devices and distribution is king. That’s why millions of fan boys see me not as a mere CEO, but as the silicon Jesus.”

Funny? Arrogant?, True? And, fair to Steve Jobs to put these words in his mouth? I don’t think so. Yet there is more than just a ring of truth to this. So, Publisher, beware!

The good news is people like Richard Sarnoff and Brian Flagler have stepped up to the plate in order to make a difference (along with many others). The result is a likely settlement over the Google situation. Here’s the deal – at least for now!

First meet David Sarnoff: Sarnoff has been a director of Activision Blizzard since August 2005, and serves as Co-Chairman of Bertelsmann, Inc. and President of Bertelsmann Digital Media Investments. Previously he served as Executive Vice President and Chief Financial Officer of Random House, Inc.

Sarnoff was named Publishing Person of the Year by Publishers Weekly. Tom Allen, President of the Association of American Publishers said: “As the principal advocate and negotiator in the Google settlement, Sarnoff redefined the meaning of leadership. The industry owes him enormous debtor gratitude.”

Early in December Sarnoff observed “we’re not across the goal line yet”. Further he states in PW; “…we became convinced that neither a victory nor a loss best served the interest of rights holders”. Sarnoff took the position that while you may be able to prevent Google from scanning and using books but “that would not be a victory for rights holders of books that are out of print and have no market”. Losing a lawsuit could have resulted in “publishers and authors getting nothing and readers and academics would only have access to snippets.”

According to Sarnoff the “tipping point came when we realised there was an opportunity to do something extraordinary for readers and academics in this country. We realised we could light up the out-ofprint backlist of this industry for two things; discovery and consumption.”

Now meet Brian Flagler, an attorney for Flagler Law Group who specialise in intellectual property and transactions for publishers, designers, producers and distributors of Christian media. He previously was General Counsel with Multnomah and then, sensing God’s call to serve more publishers he established his firm, became counsel to Evangelical Christian Publishers Association (ECPA), and offers his services to other Christian publishers.

Today he counsels many members of ECPA and provides a hotline service to answer questions. While he cannot practice law in the UK he could provide advice to companies regarding publishing matters in the USA.

A headline in our local paper reads: “Google OK concessions on deal for digital books.” Brian Flagler opines that Google’s willingness to enter into the settlement agreement can be “seen as a tacit acknowledgment that the 'fair use' doctrine does not permit Google to scan in-copyright books.”

In Flagler’s view, the proposed settlement is generally a good development in the publication of digital content. However, it is not yet clear whether the settlement will be approved.

In a paper written for ECPA he lists the “four most significant changes” recently made to the settlement in an effort to address the various concerns raised:

1. The settlement now applies only to books registered with the U.S. Copyright Office by January 5, 2009 or which were published by that date in the U.K., Canada, or Australia. Other foreign works are no longer covered in the agreement.

2. The settlement creates an “Unclaimed Works Fiduciary” to oversee the interests of and locate rights holders of unclaimed works (orphan works).

3. The "most favored nations" clause protecting Google was deleted. This would have prohibited the Registry from granting more favorable licence terms to any Google competitors.

4. Google will allow resellers to sell access to the books in its database.

There are, he says, two ways to participate in Google’s digital books programme. These are through “partner agreements and through the settlement agreement”.

Flagler observes that Google’s unilateral scanning without permission “undermined the trust level on the part of publishers with Google, but in more recent negotiations for publishers joining the “partner program,” Google has proven respectful of publishing rights and copyright, knowledgeable about publishing issues, highly professional, and a pleasure to work with.”

This article is not your final answer. I cannot cover all the bases here so simply use this information to help you get the answers you need. Brian Flagler can be reached via e-mail at Brian@flaglerlawgroup.com. He has material that will more fully inform you.