Google Book Settlement

The Google book settlement hits its deadline on May 5, 2009. Before this date, if you have ever written anything that was published in the US (or possibly distributed into the US) you will want to read the long and convoluted double speak of the settlement issues. You must choose to opt out, stay in and/or write and comment by this date. If you are an author, publisher or otherwise know someone in the business, then I encourage you to immediately go here and read all about this before you lose rights you didn’t know you were losing: http://www.googlebooksettlement.com/r/home

I first discovered some of my short stories, published in an anthology being displayed on the internet through Google. When I searched I could get all but one page of my story. If I searched from a different computer I could get the missing pages. I was shocked at the wholesale copying, with no authorization or signing of rights having been given for electronic rights. At that time I contacted the editor of the anthology and she told me that she was just as shocked.

As time rippled along, authors and publishers banded together and approached Google. The Book Settlement resulted. Now, if we back up a bit many of us will remember a time before Google but after DOS. The internet had search engines like Lycos and Yahoo and a few others. Then Google came along, big, better, the giant fish that swallowed the smaller fellows. Then Google did this cool thing, taking satellite images of the whole planet and Google Earth was born. You could zoom in on any part of the planet and look at it as it is. Then Google started driving up and down every street in every city, scanning in houses, street signs, corners, you name it. And people started getting a bit worried when they did a Google search and could see themselves in their yards or living rooms, or wherever.

And Google of course said, oh we blur the faces but people said they could identify people. And Google said, well if you let us know, we’ll remove the image.Google did the same with numerous books, scanning them in, popping them up on the internet even though people had not sold or authorized digital rights. My vanity search today shows that those titles in which my stories were almost completely visible are no longer up (while the settlement is being settled at least). The settlement is long, full of legalese and double takes to the point that I think only a copyright lawyer might follow it completely. In the long run, Google argues, this will be a good thing for authors where they will get 63% (of sales from these visible scans), that no more than 20% of a book will be visible, that libraries can have digitized copies, etc. And probably it will be a good thing.

However, within all that mire that I’m still wading through and trying to figure out before I write my letter of comment, there are provisions for Google to have more rights to your work should it not be in print. Even when a person’s book is no longer in print, that person still holds the copyright on their work but Google somehow thinks they will then have the right to digitize it. There are other such caveats that already have my head spinning.

Strangely this gives Google the right (in their minds) to scan, copy and digitize anything anyone sees and only if you complain or notice will they remove it. Can anyone say, Big Brother is Watching? We have a right to some privacy whether we’re doing anything bad or not, but because Google shoots first and ask questions later (or does as they please and waits to see if a lawsuit ensues) they’re getting far more by just taking. I find this hugely disturbing with ramifications that people haven’t seen yet. The biggest problem is devil or the deep blue sea of the settlement: if you opt out, you can sue Google or complain about the books they’re scanning in but they may still do it anyway. If you opt in, you can’t sue Google and they will scan your books. There are areas where you can ask them not to display your book (or your story in an anthology) should they scan it but there are so many exceptions I’m not sure it doesn’t mean they can do what they want no matter what.

Actually a problem even bigger than this is : why does Google get this settlement worked out that gives them a whole helluva lot of rights over written works? Why only Google? Why doesn’t the settlement mention other possible publishers, authors and digitizers of media? Because people were suing Google. But…this now sets up a precedent of exclusivity and I worry that in the future should I want to digitize my own book that I may need Google’s permission. Or that any out of print and public domain book (think Shakespeare, Hans Christian Andersen, Greek myths, fairy tales, etc.) will now only be exclusively digitized by Google. This large Chthulhian entity with many limbs of legality and money in its maw could swallow everything including our rights, our privacy and our ability to differentiation. And when it gets right down to it, I smell monopoly and that worries me a lot.

On the SF Canada writers list we discussed this quite a bit. Cory Doctorow, http://craphound.com/writer and co-editor of Boing Boing http://boingboing.net/ was very involved in the discussion. Someone finally asked him what he thought about the Google Book Settlement. He and I are pretty much on the same page. As Cory is more knowledgeable of the intricacies in the settlement and Google I asked if I could put his response here:

I think it missed the real point, which is competition. The risk to writers is that Google might end up having a disproportionate control over the distribution channel. The risk arises from Google ending up with exclusive rights to material, and from the cost of entry to its competitors.

The publishers had leverage to fix both of these, by saying:

* We will offer a feed of all our books in digital form to every search company or tool that wants to index them (much like the machine-readable digital feeds coming out of change.gov and the Obama administration)

* However, NO company may have this feed, UNLESS they agree that any public domain works they scan will be freely downloadable by their competitors. Right now, Google’s arrangement with the libraries and collections they’re scanning involves exclusive access to the public domain works in their collection (many of these are very rare). This means that GOOG might end up the sole holder of a collection encompassing millions of PD works, which enshrines a permanent advantage to Google through contract terms restricting otherwise free media, which will prevent their competitors from having a level playing field.

Contrast this with the existing settlement, which basically says:

1. Google can go on treating the public domain as private property

2. Anyone who wants to compete with Google should be prepared to spend millions in legal action with the publishers, so only the richest, least lawsuit-adverse competitors need apply

Google was able to completely change the Internet’s ecosystem and destroy several extremely well-capitalized competitors from a standing start — literally two guys in a garage — because the cost of entry was low and because there was nothing about the web that Altavista, Yahoo, etc. could index that Google couldn’t index as well.

The competitive market for search produced an amazing, world-changing array of services and tools that have given us all a better life.

Now, Google is trying to enshrine its victory by changing the search landscape, creating a web of contracts and legal settlements that will permanently prevent competitors from competing with it head on. They tried it (and failed) with Google Video. They tried it (and succeeded) with YouTube, through their settlements and exclusive content deals with video companies. They tried it (and succeeded) with their Google Print settlement.

Writers’ best future comes from having a fractured, competitive market for search, distribution, publication, discovery — all the services that comprise the channel through which our audiences discover, consume and publicize our material.

The best way to get that is to *reduce* the cost of entry for competitors, which means that the cost of entry *cannot* include 20 million dollars in legal fees and twenty billion dollars in potential liability.

If the price of admission is a staff of high-powered attorneys and the capital to face massive liability, expect a future characterized by a few gigantic media oligarchs to whom we must go, hat in hand, to beg for crumbs.

Cory

***

THE SETTLEMENT NOTICE I RECEIVED:

You are receiving this notice because our records indicate you are an author or author’s heir or successor, and your legal rights in the United States may therefore be affected by the settlement of a class action lawsuit in the United States regarding Google’s scanning of books and other writings.

 A summary of the Google Book Search settlement appears at the end of this email.

 Detailed information about the settlement is available at http://www.googlebooksettlement.com.  Please read the full Notice, which has detailed information about the settlement, important terms, the claims process, and key dates.  It is available at http://www.googlebooksettlement.com/notice.html. These documents and assistance with the claims process are also available from the Settlement Administrator by email (booksettlement_en@rustconsulting.com) or telephone.

 If you have questions about the settlement, please visit http://www.googlebooksettlement.com or email the Settlement Administrator at booksettlement_en@rustconsulting.com.  If you have questions about distributing the Notice or about the ongoing program to notify class members worldwide about this settlement, please contact the Notice Provider at GoogleSettlement@kinsella-novak.com.

 Sincerely,
Google Book Search Settlement Administrator
booksettlement_en@rustconsulting.com

Legal Notice

Persons Outside the United States: This settlement may affect you because it covers U.S. copyright interests in books published outside the United States. If you hold such an interest in a book or other material in a book, this settlement will bind you unless you timely opt out.
——————————————————————————–

If You Are a Book Author, Book Publisher or Other Person Who Owns a Copyright in a Book or Other Writing, Your rights may be affected by a class action settlement regarding Google’s scanning and use of Books and other writings.

Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders (“Rightsholders”) by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have agreed to a settlement. This summary provides basic information about the settlement. “Books” and “Inserts” are described below.

What Does the Settlement Provide?

The settlement, if Court-approved, will authorize Google to scan in-copyright Books and Inserts in the United States, and maintain an electronic database of Books. For out-of-print Books and, if permitted by Rightsholders of in-print Books, Google will be able to sell access to individual Books and institutional subscriptions to the database, place advertisements on any page dedicated to a Book, and make other commercial uses of Books. At any time, Rightsholders can change instructions to Google regarding any of those uses. Through a Book Rights Registry (“Registry”) established by the settlement, Google will pay Rightsholders 63% of all revenues from these uses.

Google also will pay $34.5 million to establish and fund the initial operations of the Registry and for notice and settlement administration costs, and at least $45 million for cash payments to Rightsholders of Books and Inserts that Google scans prior to the deadline for opting out of the settlement.

Who Is Included?

The settlement class includes all persons worldwide who own a U.S. copyright interest in any Book or Insert. The meaning of “U.S. copyright interest” is broad. Wherever you are located, please read the full Notice to determine whether you are included in the settlement.

There are two Sub-Classes:

The “Author Sub-Class” (authors of Books and other writings, and their heirs, successors and assigns), and
The “Publisher Sub-Class” (publishers of Books and periodicals, and their successors and assigns).
What Material Is Covered?

“Books” include in-copyright written works, such as novels, textbooks, dissertations, and other writings, that were published or distributed in hard copy format on or before January 5, 2009. U.S. works must be registered with the U.S. Copyright Office to be included in the settlement. “Books” do not include periodicals, personal papers, sheet music, and public domain or government works.

“Inserts” include any text and other material, such as forewords, essays, poems, quotations, letters, song lyrics, children’s Book illustrations, sheet music, charts, and graphs, if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book published on or before January 5, 2009 and, if U.S. works, registered (alone or as part of another work) with the U.S. Copyright Office. Inserts do not include pictorial content (except for children’s Book illustrations), or any public domain or government works.

The Notice contains a more detailed description of these terms and other essential information about the settlement.

What Should I do?

Please read the full Notice, which is available at http://www.googlebooksettlement.com. Decide whether you should:

  • Remain in the settlement. If you do so, you will be bound by the Court’s rulings, including a release of your claims against Google.
  • Object to or comment on the settlement. You must object/comment in writing by May 5, 2009.
  • Opt out of the settlement and keep your right to sue Google individually. You must opt out in writing by May 5, 2009.
  • File a claim for a cash payment (if you are eligible to do so). You must file your claim by January 5, 2010.


The Court has appointed Class Counsel to represent the two Sub-Classes. If the settlement is approved, Class Counsel for the Author Sub-Class will request attorneys’ fees and expenses that Google has agreed to pay. You can also hire your own attorney at your own cost.

The Court will determine whether to approve the settlement at a Fairness Hearing on June 11, 2009 at 1:00 p.m.

Get Complete Information, Including the Full Notice:

Visit: http://www.googlebooksettlement.com
Call: Toll-Free 1.888.356.0248
Write: Google Book Search Settlement Administrator, c/o Rust Consulting
P.O. Box 9364, Minneapolis, MN 55440-9364 United States of America

 This message (including any attachments) may contain confidential or otherwise privileged information and is intended only for the individual(s) to which it is addressed. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secured or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message or that arise as a result of e-mail transmission. If verification is required please request a hard-copy version from the sender.
Rust Consulting, Inc.
www.rustconsulting.com

(Note that since I was the intended addressee I seem to be able to disseminate this and there is no reason to hide it.)

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2 Comments

Filed under art, consumer affairs, Culture, entertainment, erotica, fairy tales, fantasy, horror, internet, news, people, poetry, Publishing, science fiction, security, Writing

2 responses to “Google Book Settlement

  1. Hi Colleen,

    If you need an aid for traversing “the long and convoluted double speak of the settlement”, I have prepared a 10-page annotated summary which you might find helpful. The summary is at http://www.joybutler.com/googlesummary.pdf

    – Joy Butler, Attorney and Author of The Permission Seeker’s Guide Through the Legal Jungle.

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