Interview with fiction novelist Holly Payne. Holly conducts workshops and offers coaching through her Skywriter Series.
Your first novel, "The Virgin's Knot", went through the whole evolution from hardcover to trade paper and audio books. How did the initial deal come about?
I completed the book in March of 2001, but needed to do one more trip to Turkey before I submitted it to double check historical and cultural accuracies, etc. At that time, I was fortunate enough to have an agent in New York express interest in the book, even one year prior to its completion, so I always had him in the back of my mind when I went to submit. I knew I had once chance with him, and I wanted the book to be in its best possible submission shape and told him that he wouldn’t get to read it until it passed through my initial readers; and if I had to go back to the drawing board after that and start the whole thing over, or complete a major rewrite, then he’d get it after I finished. In a nutshell, I wasn’t in a hurry, which worked to my benefit in the long-run. When the agent received the manuscript in mid-July, 2001, he sold it by the end of the month. I had no idea how lucky I was at the time, but looking back, I do. It was like winning the lottery. The timing was uncanny. If I had finished the book any later and if it had been sold in the fall after 9/11, there is a good chance it would have never been published because everyone was a afraid the market would be flooded with Muslim-themed books. They say timing is everything and now that I’m older and have more experience, I believe this really is true.
Were you surprised by the commercial success of your first novel and did it match the expectations of your publishers?
Hmmm. I’m not sure it was a ‘commerical success’ in that way — if you mean it made it on to ‘lists.’ What I do know is that I was very happy that the book had been reviewed and that it was being read wildly enough for me to realize, ‘hey more than my friends and family actually want to read this book. Isn’t that great?” I really had no idea what commercial success was and didn’t aim for it. I don’t write stories with that in mind. I just write what’s wedged between my heart and gut. Whether or not writing from that place results in dollars in the bank wasn’t something I thought about --- in fact, the opposite was true. I was told by a screenwriting mentor in LA that if I left Hollywood, chasing down this story about a rug weaver, that I would end my career. I’m glad I listened to my gut! The Virgin’s Knot was selected as a Barnes & Noble Discover Great New Writer’s pick and also a Border’s Original Voices selection, and went on to be published in 9 countries, which was a total surprise to me. Getting my first novel published was a huge surprise, so I considered everything that happened after the initial sale a bonus — like a royalty check!
Novels often draw wildly mixed reviews on sites like Amazon. Do you read your reviews and do they affect your writing?
I did at first, but then I stopped reading them — regardless if they were good or bad. You have to keep writing no matter what people say about your work. You have to keep believing in the transmission of the stories, not about the criticism. Everyone’s a critic. Few people have the courage to actually sit down and risk making a mistake in public. I love that there are so many bloggers out there now — people who really care about what they read, not about trashing the author. I see the sophistication in blog reviews that I don’t always see on places like Amazon. I think other readers are savvy to that now, too, and search for other opinions before they make purchasing decisions, even though they still read those reviews.
Your current manuscript ran into that legendary rule of fiction, that the third novel is a tougher sell than the first if the book inbetween isn't a big seller. Would you accept a trade contract for the right deal, or have you made an emotional commitment to self publishing this book so you can control the outcome?
This is a great question. Over the course of the last two months as I’ve made this decision to start my own small press, I’ve been floored by the support from colleagues and friends who know the risk that I’m taking. One thing that a good writer friend told me recently was that I have to make a total commitment, that I can’t be on the fence. I’ve made that commitment. I’m going to do this and if I fail, at least I tried. I’m tired of waiting for permission to give my readers access to my work. So many of my readers keep asking me, “When is your new book coming out?” with the assumption that it already had a publisher. I kept telling them that their guess was as good as my own. And this gets old after a while. Also, I had to make the decision to leave my agent — a very well respected New York literary agency — without any safety net. Sometimes you just don’t click with the agent, and you need to go your separate ways. We parted very amicably. It was all quite clean and professional, which is a blessing because it can often be messy and put you in a head spin about what you could have or should have done differently. I think for this particular story, it was forcing me from the very beginning to dive into the unknown and trust that free fall, which is where I am and it’s very empowering to stay in the flow of this new adventure of ‘self-publishing.’ I guess if I want to “control” anything and I use the term tongue and cheek, I want to change the way mid-list authors like myself and other talented yet unknown writers experience the publishing industry.
This is so much more about a commitment to how I want to be in the world, how I want to treat others and how I want to be treated, versus about a contract. Having said that, this is also an opportunity for mid-list authors to reinvent themselves, and to ‘prove’ (for lack of a better word) to the larger houses that we do have readers and that we do understand the business and can make decisions not only as artists, but also as business people. Imagine that...! Obviously, distribution is the key issue in all of this and definitely affects anyone’s decision to become their own publisher, but with the print on demand options out there, it’s one that I’m excited to explore. If I was able to sell ‘enough’ copies to get a New York house interested in my third book, then yes, absolutely, I’d give myself that opportunity for larger distribution. This is how Brunonia Barry sold The Lace Reader --- and coincidentally to my first editor. So, who knows what will happen?
My first publisher told me the Amish have been done and canned my outline for the story in 2005. I wrote the book anyway and it’s a totally different story than what was delineated in the initial outline. Though I was deeply hurt and frustrated at the time, I now see the amazing opportunity it gave me to start my own business and learn the inside of the industry. Now I look back and laugh at the absurdity of someone telling me ‘the Amish have been done.’ That’s like saying the Jews have been done — or that forgiveness has been done, or love, or friendship. They could have just told me, “Hey, the whole of human existence has been done,” right?
Website Development In New Publishing Ecosystem
I received an interesting email from an aspiring publisher this weekend who laid out all of the steps he planned to take in publishing his first book. It looked like he covered all of the basic points I've written about, and his question was whether he had left anything out. The one thing missing from his plan was the time line. If you're going to follow the Internet centric approach, creating a website to establish a marketing platform while carrying out market research and drawing feedback on your work in progress, you have to start publishing online BEFORE you print the book.
The correspondence reminded me that it's time to post another progress report for my new website, which is now three months old. Last month I used data from YouTube Insight to contrast the success of the simple car repair videos I've made for the IFITJAMS.COM website with the relative obscurity of my short publishing talks that take much more time to produce. That gap has continued to expand, as those simple repair videos now draw more than three times as many viewers a day as the publishing talks.
If we extrapolate from the rising slope of the curve, it can be proved that within a couple years, all YouTube visitors will be watching my car repair videos 24 hours a day. I should get a job on Wall Street:-) Over that same period of time, the number of direct visitors to the website (a mix of robots and human visitors who arrive by typing the website URL directly into the browser) has tripled as well. While those numbers aren't huge, at around 5% of overall traffic, it shows that there's some value to mentioning the website in the videos and displaying the address in a video annotation, even though YouTube doesn't allow it to be directly linked.
But search is by far the most important source website visitors unless you're running a site that's already a destination, such as a bank, government agency or a newspaper. Search is, perhaps, the most important publishing technology to come along since the printing press. I've written extensively about building a website with compelling text content and presenting it in a search engine friendly format (simple HTML), but the greatest challenge for most new publishers is attracting quality incoming links. Without those incoming links, the website won't appear high in any searches, unless the material being sought is so obscure that your site happens to be the only source.
The graph below shows the total number of search visitors per day over the first three months of life for the new website. While the number of pages on the website has increased somewhat over the three months, the pages that draw the most visitors were published within the first few weeks. Those pages, troubleshooting flowcharts for some basic car problems, each required several days of work just to publish in draft form, say two weeks of full time effort. Creating a time intensive resource for your website that isn't available anywhere else helps establish the website as a serious effort, rather than some fly-by-night blog thrown together by a keyword writer looking to make a few pennies from advertising.
I employed a two phased approach for launching this new website, starting with the initial resource content, then slowly adding photo and video illustrated car repair procedures as work on my project car progressed. This gave the initial content a chance to age in place a little longer, which doesn't hurt since some search engines treat websites like wine, preferring those that have a few cobwebs on the cork. After adding a new page that I thought would be particularly useful to people facing the same car repair challenge, I'd go out and search the web for open discussions on the topic and try to find a thread where a link to my new page would be both appreciated and contextually useful in helping the search engines figure out where the new page fit in their ecosystem. Going out and joining discussions to tell people about a new web page is exactly like cold calling - you can expect a lot of rejection to make a single sale. But unless you're already a somebody in that community, blowing your own horn is the only way you're going to get any attention.
I thought it would be a challenge to get some quality inbound links for the new site, and it has been, but it's been a useful exercise for the sake of being able to write about it in the context of the new publishing ecosystem. The Internet has changed quite a bit since I first started publishing online in 1995, and from the standpoint of attracting quality links, I'd say the two biggest changes have been blogs and social networks. In the past, people spent serious time mining the internet for useful links to add to their hobby site or to a resources page of a school, library or business. Today, the majority of organic links end up posted on social networks or blogs, where their aggregate value is quite low, due to the large number of often unrelated links getting published on those sites. And the individual blog posts or pages on the social networking site usually have a low search profile themselves, once they age out of the spotlight.
Essentially all of the search visitors to the new website, over 95%, are coming from Google. Aside from demonstrating Google's superior taste in content, it says something about how Yahoo! and Microsoft struggle to match search queries with relevant websites. From my own search activity, it appears to me that both Yahoo! and Microsoft give tremendous weight to the keywords in the domain name, path and file name, which are all easily faked by software applications that build websites from scraped content.
I'm just getting to the point where I think there's enough quality content on the new website to begin asking individuals who still maintain links pages for automotive or related DIY resources to take a look. One of the most common mistakes enthusiastic new publishers make is to go pestering everybody who maintains a links page to visit their brand new website. It may be pretty, but it's almost always devoid of content when it's new. Nobody is going to give you a quality link because the site navigation includes plans for a forum that doesn't have any members, or placeholders for content that you haven't gotten around to writing yet. Building a new website is like building a house on spec. It's rare to find a buyer until the house is substantially finished, unless the market is so hot that people are willing to buy a promise.
I'm happy to be getting some positive e-mail feedback and over a hundred visitors a day from search already, with some visitors staying on the site fifteen minutes or longer. I'm not planning any books on the auto repair subject, but it's a highly competitive area in the online world, so it shows that the Internet remains open for business to publishers who have the patience to follow the organic approach to growing a website. I don't know if search traffic will reach 200 visitors a day by the end of the year, an arbitrary goal for success that I chose as being out of reach, but it gives me an excuse for this early video rerun:
The correspondence reminded me that it's time to post another progress report for my new website, which is now three months old. Last month I used data from YouTube Insight to contrast the success of the simple car repair videos I've made for the IFITJAMS.COM website with the relative obscurity of my short publishing talks that take much more time to produce. That gap has continued to expand, as those simple repair videos now draw more than three times as many viewers a day as the publishing talks.
If we extrapolate from the rising slope of the curve, it can be proved that within a couple years, all YouTube visitors will be watching my car repair videos 24 hours a day. I should get a job on Wall Street:-) Over that same period of time, the number of direct visitors to the website (a mix of robots and human visitors who arrive by typing the website URL directly into the browser) has tripled as well. While those numbers aren't huge, at around 5% of overall traffic, it shows that there's some value to mentioning the website in the videos and displaying the address in a video annotation, even though YouTube doesn't allow it to be directly linked.
But search is by far the most important source website visitors unless you're running a site that's already a destination, such as a bank, government agency or a newspaper. Search is, perhaps, the most important publishing technology to come along since the printing press. I've written extensively about building a website with compelling text content and presenting it in a search engine friendly format (simple HTML), but the greatest challenge for most new publishers is attracting quality incoming links. Without those incoming links, the website won't appear high in any searches, unless the material being sought is so obscure that your site happens to be the only source.
The graph below shows the total number of search visitors per day over the first three months of life for the new website. While the number of pages on the website has increased somewhat over the three months, the pages that draw the most visitors were published within the first few weeks. Those pages, troubleshooting flowcharts for some basic car problems, each required several days of work just to publish in draft form, say two weeks of full time effort. Creating a time intensive resource for your website that isn't available anywhere else helps establish the website as a serious effort, rather than some fly-by-night blog thrown together by a keyword writer looking to make a few pennies from advertising.
I employed a two phased approach for launching this new website, starting with the initial resource content, then slowly adding photo and video illustrated car repair procedures as work on my project car progressed. This gave the initial content a chance to age in place a little longer, which doesn't hurt since some search engines treat websites like wine, preferring those that have a few cobwebs on the cork. After adding a new page that I thought would be particularly useful to people facing the same car repair challenge, I'd go out and search the web for open discussions on the topic and try to find a thread where a link to my new page would be both appreciated and contextually useful in helping the search engines figure out where the new page fit in their ecosystem. Going out and joining discussions to tell people about a new web page is exactly like cold calling - you can expect a lot of rejection to make a single sale. But unless you're already a somebody in that community, blowing your own horn is the only way you're going to get any attention.
I thought it would be a challenge to get some quality inbound links for the new site, and it has been, but it's been a useful exercise for the sake of being able to write about it in the context of the new publishing ecosystem. The Internet has changed quite a bit since I first started publishing online in 1995, and from the standpoint of attracting quality links, I'd say the two biggest changes have been blogs and social networks. In the past, people spent serious time mining the internet for useful links to add to their hobby site or to a resources page of a school, library or business. Today, the majority of organic links end up posted on social networks or blogs, where their aggregate value is quite low, due to the large number of often unrelated links getting published on those sites. And the individual blog posts or pages on the social networking site usually have a low search profile themselves, once they age out of the spotlight.
Essentially all of the search visitors to the new website, over 95%, are coming from Google. Aside from demonstrating Google's superior taste in content, it says something about how Yahoo! and Microsoft struggle to match search queries with relevant websites. From my own search activity, it appears to me that both Yahoo! and Microsoft give tremendous weight to the keywords in the domain name, path and file name, which are all easily faked by software applications that build websites from scraped content.
I'm just getting to the point where I think there's enough quality content on the new website to begin asking individuals who still maintain links pages for automotive or related DIY resources to take a look. One of the most common mistakes enthusiastic new publishers make is to go pestering everybody who maintains a links page to visit their brand new website. It may be pretty, but it's almost always devoid of content when it's new. Nobody is going to give you a quality link because the site navigation includes plans for a forum that doesn't have any members, or placeholders for content that you haven't gotten around to writing yet. Building a new website is like building a house on spec. It's rare to find a buyer until the house is substantially finished, unless the market is so hot that people are willing to buy a promise.
I'm happy to be getting some positive e-mail feedback and over a hundred visitors a day from search already, with some visitors staying on the site fifteen minutes or longer. I'm not planning any books on the auto repair subject, but it's a highly competitive area in the online world, so it shows that the Internet remains open for business to publishers who have the patience to follow the organic approach to growing a website. I don't know if search traffic will reach 200 visitors a day by the end of the year, an arbitrary goal for success that I chose as being out of reach, but it gives me an excuse for this early video rerun:
Author Income and Getting Paid to Write Books
One of the regular questions I hear from aspiring authors is some variation on "What's the average income for authors?" Fortunately, there aren't any reliable statistics, because if there were, quite a few writers would give up without trying! Last July I wrote about the average income for small publishers (including self publishers) and quoted the BLS figure of $13,348 for those publishers reporting a profit. As discouraging as that may sound, trade authors and self published authors share a common economic truth, which is that most of them don't earn a living at it. Getting paid to write books is not the same thing as making a living writing books, and those six figure advances that get so much publicity are strictly for bestselling authors, or for newcomers to whom the publisher is paying a big advance more to create industry buzz than to close the deal.
In my experience, trade authors who are earning a decent living on advances and royalties still aren't ecstatic about their relationship with the publisher. Quoting from the correspondence of Frederick Marryat, a successful novelist writing in the 1830's and 1840's:
Most of the "successful" trade authors I know, successful because they are always in demand to write another book for a modest advance, don't actually earn their primary income as authors. Many hold full time jobs in the professions or make their living as speakers and consultants, and some have sufficient wealth or retirement income to render any royalty payments a pleasant bonus. On the other hand, the common definition of a successful self publisher is one who makes a living at it. Therefore, successful self publishers earn a higher median income than successful trade authors by definition. I won't say I higher average income, because it doesn't take many J.K Rowlings or Rick Warrens to raise the average.
I think most unpublished writers would argue that anybody who gets paid to write a book is a successful author, without regard to what happens down the road. I remember very distinctly being out running one day in the mid-1990's and swearing to myself that if I could just break into the trades and earn $20K a year as an author I'd be happy for life. Not long afterwards I started earning that income and more as a trade author, but my attitude changed by the third book, despite the fact it brought in well over $50,000. As I learned more about the business of publishing, I went from feeling lucky to feeling I was trapped in a bad contract. An agreement first signed in 1998 continues to tie my hands in an area where I once had a terrific Internet following, lost to the publisher's inflexibility on managing the intellectual rights.
Turning down a trade contract to self publish is an iffy proposition for most authors, and I generally discourage anybody writing fiction from doing so. For nonfiction writers, the financial results are going to vary on a case by case basis, but if you care about control, self publishing will always be the better choice. Control isn't just about the editorial process, when to release a new edition, and whether or how to publish on the Internet. It comes down to the most fundamental question of all facing any author - What's my next book?
In my experience, trade authors who are earning a decent living on advances and royalties still aren't ecstatic about their relationship with the publisher. Quoting from the correspondence of Frederick Marryat, a successful novelist writing in the 1830's and 1840's:
Your remark as to the money I have received may sound well, mentioned as an isolated fact.; but how does it sound when it is put in juxtaposition with the sums you have received? I, who have found everything, receiving a pittance, while you, who have found nothing but the shop to sell in, receiving such a lion's share. I assert again it is slavery. I am Sinbad the sailor and you are the old man of the mountain, clinging on my back, and you must not be surprised at my wishing to throw you off the first convenient opportunity.
The fact is, you have the vice of old age very strong upon you, and you are blinded by it; but put the question to your sons, and ask them whether they consider the present agreement fair. Let them arrange with me, and do you go and read your Bible. We all have our ideas of Paradise, and if other authors think like me, the most pleasurable portion of anticipated bliss is that there will be no publishers there. That idea often supports me after an interview with one of your fraternity.
Most of the "successful" trade authors I know, successful because they are always in demand to write another book for a modest advance, don't actually earn their primary income as authors. Many hold full time jobs in the professions or make their living as speakers and consultants, and some have sufficient wealth or retirement income to render any royalty payments a pleasant bonus. On the other hand, the common definition of a successful self publisher is one who makes a living at it. Therefore, successful self publishers earn a higher median income than successful trade authors by definition. I won't say I higher average income, because it doesn't take many J.K Rowlings or Rick Warrens to raise the average.
I think most unpublished writers would argue that anybody who gets paid to write a book is a successful author, without regard to what happens down the road. I remember very distinctly being out running one day in the mid-1990's and swearing to myself that if I could just break into the trades and earn $20K a year as an author I'd be happy for life. Not long afterwards I started earning that income and more as a trade author, but my attitude changed by the third book, despite the fact it brought in well over $50,000. As I learned more about the business of publishing, I went from feeling lucky to feeling I was trapped in a bad contract. An agreement first signed in 1998 continues to tie my hands in an area where I once had a terrific Internet following, lost to the publisher's inflexibility on managing the intellectual rights.
Turning down a trade contract to self publish is an iffy proposition for most authors, and I generally discourage anybody writing fiction from doing so. For nonfiction writers, the financial results are going to vary on a case by case basis, but if you care about control, self publishing will always be the better choice. Control isn't just about the editorial process, when to release a new edition, and whether or how to publish on the Internet. It comes down to the most fundamental question of all facing any author - What's my next book?
Google Ebooks in Print or Sabbath Kindle
Back in 2005, the Author's Guild (which I had quit by that time) launched a lawsuit against Google Print, the predecessor of Google Books. After three years, a settlement was reached last week that will allow Google to start making the content of millions of out-of-print books scanned from participating library collections available as ebooks for a fee. The fee will be shared with presenting rights holders, as will any ad revenue from those pages. The ad revenue will likely be a bigger source of income for both Google and publishers than ebook sales.
The primary concession from Google's side to achieve the settlement appears to be that they will cease to display snippets of in-print books in search results without permission from the rights holder. I'm not sure what argument was made on why the snippets shouldn't qualify as "editorial usage", perhaps because they were variable, produced on the fly in accordance with a query phrase. In my estimation, this settlement was a big win for Google, and does not represent a strengthening of intellectual property rights, as some in the publishing industry seem to be claiming.
But that's OK, because the mainstream players in the publishing industry never grokked the Google program any more than then they understood how the Internet is changing the publishing landscape under their feet. The snippets they are so proud of eliminating for in-print books could only have helped readers find those book and increased sales. I wrote about this in a blog post back in 2005 that Google blurbed on their publisher page:
Books can be loosely divided into three categories: in-print, out-of-print but in-copyright, and out-of-copyright. The snippet issue relates to in-print books. The out-of-copyright books were never an issue, though determining whether or not books are out-of-copyright can get tricky. Out-of-print books aren't making money for publisher or authors, but somebody, either the publisher, the author, or the legal heirs of either, still owns the rights if they are in-copyright. Google's initial argument was that Google shouldn't have to make an effort to find those rights holders, because it was likely to be difficult in many cases. At the time I didn't think that was a very reasonable legal argument. Three years later it makes a great deal of sense to me, though I think they could have described their position a little better at the time. It's not that it would have been difficult to find the original rights holders for many out-of-copyright books, it would have been nearly impossible, and involved legal proceedings to determine rightful heirs in many cases. That burden would have resulted in those books being lost to the public, who could otherwise access them as ebooks. If Google was a Hollywood studio making a multi-million dollar movie based on an out-of-print but in-copyright book, it would be a different story.
All but one of my self published titles are in the Google Books program. I kept one out as a "control group" so I could have a subject for an analytical blog post one day. As soon as Google introduced the option to list those titles for sales as ebooks, I signed up, and have been waiting, year after year, for that part of the program to become operational. I'm hoping that it's been on hold all this time due to the lawsuit, and that they'll be adding "Buy it now" buttons as soon as the legal niceties are completed. But I'm also holding out hope that ebooks aren't the end of the road for the Google Books program.
What I'd like to see Google do is to sign up with some major print-on-demand vendors, such as Lightning Source and Amazon, and make all of the out-of-print books available as POD. These printed books, with simplified covers and other quality limitations, would still have an impact on used book sellers, but as somebody who once paid a used book dealer over $100 for a book on acid paper that was falling apart because it wasn't available elsewhere, my sympathies lie with the readers in this case. I don't think it would be a huge business. Most of the ebook action will probably be in nonfiction, where people are looking for reference information that's contained in a few pages and can be printed or be read from a computer screen, and they won't normally be willing to pay for a bound copy. But I may be too old a dog to make the transition to reading literature on a Kindle, Sony Reader or a computer screen. And then there's the Sabbath.
My two basic rules in life are that I don't work on computers on the Sabbath and I don't read novels that are in-copyright. The latter is a question of taste, not a legal position. Coincidentally, this past weekend I finished reading Scott's forty eight volume Waverly Novel collection, and discovered to my great chagrin that there was a glossary of Scottish terms at the end of the 48th volume! I'm fortunate to live in the home town of Smith College, which claims to have the largest college (not university) library in the US. But even in a library as good as Smith's, older books, which crumble when read or which are simply vanish from the collection, often go unreplaced. I can tell by the occasional uncut page in the Waverly Novels and the relative lack of circulation date stamps that the lesser known works haven't been in high demand the last 100 years or so.
As a reader, rather than a book collector or fetishist, I prefer reading books where I don't have to be careful about breaking the pages as I turn them. And since I stay off the computer on the Sabbath, it's often a big reading day for me. My staying off the computer isn't based on Orthodox observance of the Jewish law that prohibits making a fire (which the rabbis have interpreted in modern times as many new prohibitions, including throwing an electrical switch), but on my treating the computer as a beast of burden that deserves a day of rest. That way, I get the day off as well. But would I use a Kindle or another ebook reading device on the Sabbath for recreational reading?
First of all, I think it would be relatively easy to write the program to create a Shabbos Kindle. It would have to turn itself on at a preset time, Friday evening or Saturday afternoon, and proceed to flip through a book at a preset speed. It would probably make it more kosher if the buttons were disabled during the Sabbath to prevent accidental work. Orthodox Jews have long accepted Shabbos timers (clocks that turn lights off and on automatically) and even Shabbos elevators, which run a preset schedule for the entire Sabbath, stopping at every floor. So I'm relatively confident that a Shabbos ebook reader is not far away, and may even have a religious purpose if used in large print mode for religious texts that aren't otherwise accessible to people with limited eyesight.
But I think that it's a case where the intention of the law is more important to me than the letter of the law, and I'd be inclined not to use a Sabbath Kindle as being too close to making my beast of burden work when I'm resting.
The primary concession from Google's side to achieve the settlement appears to be that they will cease to display snippets of in-print books in search results without permission from the rights holder. I'm not sure what argument was made on why the snippets shouldn't qualify as "editorial usage", perhaps because they were variable, produced on the fly in accordance with a query phrase. In my estimation, this settlement was a big win for Google, and does not represent a strengthening of intellectual property rights, as some in the publishing industry seem to be claiming.
But that's OK, because the mainstream players in the publishing industry never grokked the Google program any more than then they understood how the Internet is changing the publishing landscape under their feet. The snippets they are so proud of eliminating for in-print books could only have helped readers find those book and increased sales. I wrote about this in a blog post back in 2005 that Google blurbed on their publisher page:
Books can be loosely divided into three categories: in-print, out-of-print but in-copyright, and out-of-copyright. The snippet issue relates to in-print books. The out-of-copyright books were never an issue, though determining whether or not books are out-of-copyright can get tricky. Out-of-print books aren't making money for publisher or authors, but somebody, either the publisher, the author, or the legal heirs of either, still owns the rights if they are in-copyright. Google's initial argument was that Google shouldn't have to make an effort to find those rights holders, because it was likely to be difficult in many cases. At the time I didn't think that was a very reasonable legal argument. Three years later it makes a great deal of sense to me, though I think they could have described their position a little better at the time. It's not that it would have been difficult to find the original rights holders for many out-of-copyright books, it would have been nearly impossible, and involved legal proceedings to determine rightful heirs in many cases. That burden would have resulted in those books being lost to the public, who could otherwise access them as ebooks. If Google was a Hollywood studio making a multi-million dollar movie based on an out-of-print but in-copyright book, it would be a different story.
All but one of my self published titles are in the Google Books program. I kept one out as a "control group" so I could have a subject for an analytical blog post one day. As soon as Google introduced the option to list those titles for sales as ebooks, I signed up, and have been waiting, year after year, for that part of the program to become operational. I'm hoping that it's been on hold all this time due to the lawsuit, and that they'll be adding "Buy it now" buttons as soon as the legal niceties are completed. But I'm also holding out hope that ebooks aren't the end of the road for the Google Books program.
What I'd like to see Google do is to sign up with some major print-on-demand vendors, such as Lightning Source and Amazon, and make all of the out-of-print books available as POD. These printed books, with simplified covers and other quality limitations, would still have an impact on used book sellers, but as somebody who once paid a used book dealer over $100 for a book on acid paper that was falling apart because it wasn't available elsewhere, my sympathies lie with the readers in this case. I don't think it would be a huge business. Most of the ebook action will probably be in nonfiction, where people are looking for reference information that's contained in a few pages and can be printed or be read from a computer screen, and they won't normally be willing to pay for a bound copy. But I may be too old a dog to make the transition to reading literature on a Kindle, Sony Reader or a computer screen. And then there's the Sabbath.
My two basic rules in life are that I don't work on computers on the Sabbath and I don't read novels that are in-copyright. The latter is a question of taste, not a legal position. Coincidentally, this past weekend I finished reading Scott's forty eight volume Waverly Novel collection, and discovered to my great chagrin that there was a glossary of Scottish terms at the end of the 48th volume! I'm fortunate to live in the home town of Smith College, which claims to have the largest college (not university) library in the US. But even in a library as good as Smith's, older books, which crumble when read or which are simply vanish from the collection, often go unreplaced. I can tell by the occasional uncut page in the Waverly Novels and the relative lack of circulation date stamps that the lesser known works haven't been in high demand the last 100 years or so.
As a reader, rather than a book collector or fetishist, I prefer reading books where I don't have to be careful about breaking the pages as I turn them. And since I stay off the computer on the Sabbath, it's often a big reading day for me. My staying off the computer isn't based on Orthodox observance of the Jewish law that prohibits making a fire (which the rabbis have interpreted in modern times as many new prohibitions, including throwing an electrical switch), but on my treating the computer as a beast of burden that deserves a day of rest. That way, I get the day off as well. But would I use a Kindle or another ebook reading device on the Sabbath for recreational reading?
First of all, I think it would be relatively easy to write the program to create a Shabbos Kindle. It would have to turn itself on at a preset time, Friday evening or Saturday afternoon, and proceed to flip through a book at a preset speed. It would probably make it more kosher if the buttons were disabled during the Sabbath to prevent accidental work. Orthodox Jews have long accepted Shabbos timers (clocks that turn lights off and on automatically) and even Shabbos elevators, which run a preset schedule for the entire Sabbath, stopping at every floor. So I'm relatively confident that a Shabbos ebook reader is not far away, and may even have a religious purpose if used in large print mode for religious texts that aren't otherwise accessible to people with limited eyesight.
But I think that it's a case where the intention of the law is more important to me than the letter of the law, and I'd be inclined not to use a Sabbath Kindle as being too close to making my beast of burden work when I'm resting.