If you are an AESE member who owns the U.S. copyright in a book or book insert published before January 5, 2009, this message is for you. You have until September 4, 2009, to opt in to or opt out of the settlement agreement for the class-action copyright infringement suit brought against Google by the Authors’ Guild and the American Association of Publishers. Failure to act by that date will have the same effect as opting in. This message contains a few points that affected members may want to consider and includes pointers to relevant information about the settlement.
AESE does not offer legal advice, nor does AESE have a recommended course of action. The association is simply urging affected members to look into their rights with respect to the settlement. Because the settlement-agreement deadline is so close to the distribution date for the next Blueline, the AESE board decided to send this information via e-mail to all members before then. A general discussion of the Google case will appear in the next issue of Blueline.
What is the settlement agreement, and why should copyright owners care? The parties to the class-action copyright-infringement suit brought against Google for scanning and displaying tens (if not hundreds) of thousands of copyrighted books have agreed to settle out of court. Because this is a class action, all those defined as being part of the class are included in this decision unless they declare that they will opt out. Google will continue to scan and display books unless the copyright owner takes some action.
Who is covered by the settlement agreement? Those who are covered are individuals or entities who own the U.S. copyright in a book or book insert published prior to January 5, 2009, and still protected by copyright. You may own the copyright by virtue of having been the creator of the work or having had all or part of the copyright transferred to you. Even if you share the copyright in a work, you should look into this agreement. If you are unsure as to whether a work is still under copyright, you will need to check the date of creation. If the work was created after 1978, it is still under copyright; if it was created prior to 1978, check the “frequently asked questions (FAQs)” section on the Copyright Office Web site for information on how to determine the length of the copyright term: http://www.copyright.gov/help/faq/.
For purposes of the settlement, what is a book or book insert? What those of us who edit and publish consider to be a book is not necessarily what this agreement defines as a book or what Google has scanned as part of this “books” project. Scanned items include field guides, meeting proceedings, reprints of special issues of journals, and possibly library-bound collections of journal issues. Even though this project was not intended to include journals, it appears that Google might have scanned some mistakenly.
By opting in, what does the copyright owner get?
* A share of the cash payment related to the settlement. This is expected to be not less than $60 per book nor more than $300.
* A share of the moneys Google may receive from ad sales, subscriptions, or other sales related to this scanning project. Two-thirds of the moneys received will go to the copyright owners who opt in. Distributions of those moneys will be determined by the Book Rights Registry, which will be made up of three individuals from the author community and three from the publishers’ side.
* The opportunity to file an objection or request to appear before the judge at the fairness hearing if the objection or notice is postmarked on or before September 4, 2009. A copyright owner who opts out is not a party to the settlement and therefore cannot register an objection about the agreement for consideration by the judge.
* Ability to instruct Google about what can or cannot be done with respect to any given book, including withholding the item from any display.
* The right to set the sales price for individual books that Google may sell. Google will have the right to sell individual books that are still under copyright but are no longer commercially available.
By opting in, what does the copyright owner give up?
* With respect to the books and book inserts published prior to January 5, 2009, the right to sue Google or any of the libraries that have cooperated with Google in this project. Future disputes with respect to the agreement will be settled by binding arbitration at the behest of the Book Rights Registry.
By opting out, what does the copyright owner get?
* The right to sue Google and the libraries that cooperated in the project.
* An opportunity to request that Google not scan its books. There is no binding obligation for Google to respect this request, although the company has indicated that its current policy is not to scan such books in the future and not to display them if the books have already been scanned.
By opting out, what does the copyright owner give up?
* A share of the cash settlement and a share of any future moneys that Google may earn from the books it has scanned. To receive a share of this cash settlement, the opting-in copyright owner must complete the claim form no later than January 5, 2010.
* A more certain guarantee that its wishes with respect to the scanned books will be honored. The Book Rights Registry is not obligated to oversee the works of those who have opted out of the agreement.
* The possibility of being included in the special search products that Google will create from the full-text scanning it is doing.
What may you as a copyright owner want to consider in deciding whether to opt in or opt out or in deciding what permissions to grant with respect to any given book if you opt in?
* How important is it to be part of the Google book search that will be supported by the database Google is creating with this project?
* What are you currently doing with out-of-print books that are still under copyright? Do you have plans for these works that may be positively or negatively impacted by what is known about Google’s plans to make books available?
* To what extent may snippets of the book substitute for purchase? To what extent would snippets help to entice individuals to make a purchase from you or a source that gives you moneys directly from sales?
* What impact may opting in have on other arrangements that you have for displaying or selling your books? The Google settlement agreement is nonexclusive; however, if you have exclusive arrangements with others, you likely are precluded by those arrangements from giving permissions to Google.
* What kind of resources in time may it require of you? The extent to which you wish to make individual decisions about specific books will determine the time resources needed if you opt in. In addition, you will want to keep yourself aware of Google’s future plans. These plans must be cleared with the Book Rights Registry, but the copyright owners may be required to make specific opt-in/opt-out decisions for some of the future services.
For further information, AESE members should consult the official Web site that is being maintained by the administrator for the settlement agreement: http://books.google.com/booksrightsholders/.
In addition, the Association of American Publishers has good information on its Web site at http://www.publishers.org/main/Copyright/Google/Faq.htm.
This bulletin benefited from discussions at a recent meeting organized by the American Geological Institute (AGI) for its member societies and was prepared for AESE by Judy C. Holoviak.
[...] settlement that emerges is likely to differ in some substantial ways from the earlier one, thus the July 27 post on the subject is probably obsolete. Nevertheless, we encourage AESE members to pay close attention [...]