Google Settlement - Latest News
1. What is Google Books?
Google Books is a search engine that allows users to search over the full text of over seven million titles which have been scanned by Google. The books which have been scanned by Google have come from the library collections of 20 universities which have partnered with Google, as well as over 20,000 publishers and authors who have signed agreements allowing it to scan their titles. Users can search for titles, authors or search terms via the online database of scanned titles. For every title that Google has scanned onto its database users can view basic bibliographic information for that edition. In addition, Google Books allows users to view “snippets” of text which show the search term entered in context. If the book is no longer in copyright users can view and download the entire text, free of charge. Where a book is still in copyright, the amount of text displayed is determined by the copyright holder.
2. Why has the project been controversial?
Various rights holders in the U.S. (including the Author’s Guild) have queried whether an entity such as Google should be able to copy and index copyrighted works so that users can search through them. As a result they have brought a class action on behalf of all rights holders in books that have been scanned by Google, claiming that Google violated the copyrights of authors, publishers and other owners of U.S. copyrights in books and other writings by “digitising” (scanning) them, creating an electronic database of books, and displaying short excepts without the owner’s permission. A settlement of the lawsuit has now been reached on behalf of all owners of U.S. copyrights in books and other works published on or before January 5, 2009.
3. What are the terms of the Google Settlement?
The settlement allows Google several rights including: 1) the right to carry on digitising authors’ works who have agreed to the settlement 2) the right to sell the materials 3) the right to sell subscriptions to an electronic Books database 4) the right to show advertising alongside the books, and to exploit the books commercially in other ways according to the uses agreed by each author. In return authors who agree to the settlement will receive a payment of $60-$200 dollars per work that has been digitised (not per edition) as well as approximately 57% of any revenues earned by Google (please note that the percentage of revenue that an author may expect to receive is dependent on what uses Google makes of a work, as well as any revenue split with publishers etc). In addition Google has also agreed to establish and maintain a Book Rights Registry to collect revenue from Google and distribute it to copyright owners. Authors who agree to the terms of the settlement will also be able to control what uses Google can make of any particular edition and control the extent to which the work is displayed.
4. How does the Google Settlement affect PFD clients?
Any author who has had work published before January 5, 2009 and which has been included by Google in its Google Book project is potentially affected by the proposed settlement. This is irrespective of whether a particular work has been published in the U.S. or not, as many of the titles which have been scanned by Google under the Google Books programme have come from library collections holding foreign editions. As a result authors across the world may be affected by the settlement.
In order to verify whether your work may have been included by Google in its database you need to go to the Google Book Settlement website (http://www.googlebooksettlement.com) and set up an account. Once you have followed the steps to set up an account you may search Google’s database to confirm whether any editions of your work appear by following the steps below:
- Log on using the username and password you have set up;
- Click on the “find and claim” button;
- You will then be directed to the “Tools for finding and claiming books and inserts” page;
- Select the “search for books” and click on “continue”;
- The next screen will give you search options. You may search by any of the fields; individually or in combination. Once your results have been generated, you may download them as a spreadsheet, where you can view the digitization status;
- Click on the “download results as a spreadsheet” option at the bottom of the page. Then in column "P" you may see if the books have been digitised by May 5th, 2009.
5. Options for authors who are affected by the terms of the Google Settlement
Authors whose work has been included by Google under the Google Books Project must first determine what rights they may hold in relation to each edition of their work that appears in the database. Authors who have confirmed that they are rights holders have two courses of action available to them: either to opt out of the settlement, or to opt in to the settlement.
Authors who do not wish to participate in the settlement and wish to remove themselves from the class action, must opt out of the settlement before January 28, 2010, otherwise they are automatically deemed to have accepted the terms of the settlement. By opting out of the settlement authors are reserving their right to sue Google independently should they so wish. Authors wishing to opt out of the Google Settlement should note that they will be opting out of the settlement as an author, and therefore every edition of their work that Google has scanned without their permission will be removed from the database. There is no option to opt out on a book by book basis. Please note that if you opt out of the settlement you will not be entitled to receive any payments under the settlement or take advantage of other settlement benefits, nor will you be permitted to opt in at a later date.
For authors who wish to remain in the settlement, there is no need to take any immediate action. However there are several deadlines which authors need to be aware of which are set out in section seven below. Should an author opt into the settlement and subsequently wish to remove an edition from Google’s database, they have until April 5, 2011 to do so. After this date authors who fail to remove a book from the scheme waive the right to do so for the term of copyright. However, while authors may not be able to remove works from the database after this date, they will still retain the right to block any title from being displayed on Google Books. The mechanics of blocking the display of an edition will vary depending on whether an edition is classified by Google as “commercially available” in the U.S. For editions that fall into this category, Google will automatically block the book from being fully displayed, giving authors the option to subsequently un-block them should they wish. Conversely, editions that Google does not consider to be commercially available in the U.S. will be displayed in full, placing the onus on the author to block editions which they do not wish to be viewed.
6. Steps to opt in or out of the Google Settlement
i) Opting out of the settlement
The deadline for opting out of the settlement is January 28, 2010. To opt out of the settlement you must go to the Google Book Settlement website (www.googlebooksettlement.com) and click "opt out" in the information bar along the top of the page. Alternatively you can send written notice to Google by First-Class mail, postage prepaid, postmarked on or before January 28, 2010, to: The Settlement Administrator, c/o Rust Consulting, PO Box 9364, Minneapolis, MN 5540-9364, U.S.A.
ii) Opting in to the settlement
If an author wishes to remain in the settlement they do not need to do anything. However, all authors who wish to claim their right to payment from Google for use of their work(s) will need to submit a claim form. In order to do this you will need to set up an account on the Google Book Settlement website (www.googlebooksettlement.com) and then follow the online instructions for completing a claim form. Authors who wish to receive a cash payment from Google for any book(s) that have been scanned by Google, on or before May 5, 2009, without the author’s permission, need to submit their claim form before June 5, 2010.* If an author simply wishes to claim for any future revenue earned from Google’s use of his or her book(s) there is no deadline for submitting a claim form. For authors who do not have access to a computer, Google will mail a paper claim form to them on request to the Settlement Administrator (address provided above). Authors who do not have an ITIN (tax processing number) will need to obtain one from the Internal Revenue Service before being eligible to receive payment, and should allow time for obtaining one.
If you have previously opted out of the Settlement and now wish to opt back in, you must do so before January 28, 2010, either by post (as above) or online by going to the Google Book Settlement website (URL above) and clicking "opt back in" in the information bar along the top of the page.
*Please note that this date reflects a change from the orginal deadline of January 5, 2010.
7. Deadlines
- January 28, 2010 - last day to opt out of, or back into the settlement (note this has been extended from September 4, 2009)
- June 5, 2010 - deadline for filing a claim for a cash payment for any digitised book.
- April 5, 2011 - deadline for requesting removal of a book from Google Books
8. Progress of the Settlement
On Friday 18 September 2009, the US Department of Justice filed a Statement of Interest with the Court. In the Statement it opined that the settlement agreement in its current form should be rejected and amended so as to comply with US rules on class actions, copyright and anti-trust laws.
Here is the link to the Statement of Interest:
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/720/.
At a hearing before the U.S. Justice Department on October 7 to review objections to the Google Settlement, the court called for an amended settlement deal to be filed for preliminary approval by November 9, with a view to holding a hearing for final approval of the deal in December 2009 or January 2010. Parties who are affected by the Google Settlement will have a further period of time after November 9 during which to file any additional objections to the settlement before final approval is granted.
Authors should note that although the U.S. Justice Department has rejected the current form of the Google Settlement, this has not impacted on the date for opting out of the settlement which passed on September 4. Please note however, that Google has extended the date for submitting Claim Forms for cash payments to June 5, 2010.
On Friday 13th November a revised version of the Google Settlement was filed with the US federal court. Among the main revisions to the settlement is the provision for the creation of an independent fiduciary (trustee) who will be responsible for all decisions regarding works whose rights holders are unknown or cannot be traced. The trustee, with Congressional approval, will be able to grant licences to other companies aside from Google who may want to sell such works. Another important revision to the Google Settlement is the introduction of new restrictions which limit the Google Books catalogue to books published in the USA, UK, Canada and Australia.
Further to the fairness hearing held on February 18th to decide whether or not to approve the revised settlement Judge Denny has issued a statement that he will not make an immediate ruling. He is expected to write an opinion at a later date.
9. What Next?
There continues to be extensive debate as to how the mechanics of Google Books and the Google Settlement will operate and to what extent authors, agents and publishers will be responsible for monitoring the commercial availability of an edition and how this will impact on various rights issues going forward. Due to the complexity of the issues involved many agencies and professional bodies in the UK have refrained from issuing advice up to this point. However, Random House, Penguin and Headline have issued statements in the last week confirming that they are advising their authors to opt in to the Settlement. The Society of Authors has also stated in the last few days that it sees no compelling evidence for opting out. Authors can read the Society's full guidance on their website (www.societyofauthors.org).
We will continue to provide updates on the website to reflect any further developments.
10. Useful Links
Google Settlement Website
http://www.googlebooksettlement.com
Society of Authors Website
The Google Book Settlement: a survival aid for UK authors by Gill Spraggs
http://www.gillianspraggs.com/gbs/GBS_survival_aid.html
Google Books Website
Joint Public FAQ (Google, AAP, Authors’ Guild)
http://publishers.org/main/Copyright/Google/Faq.htm
FAQ section of the Google Settlement website
http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en
American Authors’ Guild
http://www.authorsguild.org/advocacy/articles/settlement-resources.html
Boni & Zak (counsel for the Authors Guild and Authors Sub-Class)
bookclaims@bonizack.com
The BookSeller