Background: Four years ago, the Author’s Guild and other plaintiffs filed a class action lawsuit against Google for its “Book Search,” alleging that Google violates the copyrights of authors and publishers in books by digitizing (scanning) them, creating an electronic database of books, and displaying short excerpts without the copyright owners’ permission. Google defended its practice by saying it was “fair use” (it’s not).
On November 13th, 2009, the parties announced a revised settlement agreement that continues to grant Google an unprecedented catalog of printed material. Its effect on writers and on copyright and antitrust law could be huge.
The primary revisions to the Agreement:
- The settlement will only include books that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada.
- Any book retailer will be able to sell consumers online access to the out-of-print books covered by the settlement, including unclaimed books.
- Rightsholders can choose to make their books available for free or allow re-use.
- Rightsholders can also choose to modify or remove restrictions placed on Google’s display of their books, such as limits on the number of pages that users can print.
- The Books Rights Registry is now free to license to other parties without ever extending the same terms to Google (The Registry is intended to manage a royalty system to compensate authors and publishers from the sale of digitized books.)
One major addition to the Agreement addresses so-called orphan works, (books whose copyright holders are unknown or cannot be found). It establishes the position of an “Unclaimed Works Fiduciary,” who will be responsible for all decisions about orphan works, including whether to license rights in those works to third parties. This trustee has the power to grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate. If the money goes unclaimed for 10 years, it will go to charities and, supposedly, to an effort to locate the actual copyright holders.
Judge Denny Chin has given his preliminary approval to this revised settlement agreement. A final settlement/fairness hearing has been set for February 18, 2010. The Department of Justice has previously urged the court to reject the Settlement because of antitrust concerns.
Every MWA author should make a point of going to the Google settlement site, reviewing the Amended Settlement Agreement and Notice Documents, and providing your contact information to Google at http://books.google.com/booksrightsholders/notice.html.
For a redline version of the Settlement Agreement showing the revisions, download:
© 2009 Daniel Steven