Key Points">Key Points
FAQs">FAQs
General Comments from Jeff Hecht">General Comments from Jeff Hecht
Additional Comments from Beryl Benderly">Additional Comments from Beryl Benderly
Resources and Links">Resources and Links
UPDATES -- APRIL 2009">UPDATES — APRIL 2009
In late October 2008, the Authors Guild and Google announced a proposed settlement of suits that the Guild and book publishers filed charging Google with copyright infringement for its massive book scanning project with four major university libraries. The details of the 323-page settlement are very complex, but here's a quick guide starting with a list of key points you need to know.
- The settlement applies to holders of rights on books still in copyright, which is assumed to include all books published since January 1, 1923.
- All books deemed out of print are included in the settlement unless rights-holders explicitly "opt OUT" of the settlement.
- All books deemed in print are not included in the settlement unless rights-holders explicitly "opt IN" to the settlement. This normally would be done through the publisher.
- Books are in print if new copies of any edition are available commercially, including electronic and print-on-demand (POD) editions.
- Whether you decide to opt in or opt out, you should register your claims at the web site www.googlebooksettlement.com/ beginning January 5, 2009. Meanwhile Google will be posting a list of books scanned that they plan to include, which will be complete by May 5, 2009. You need to register by January 5, 2010.
- The settlement covers both authors of books and authors of "inserts" included in books, ranging from excerpts you gave the author permission to use to articles you had published in an edited anthology.
- Payment will be split between author and publisher if the book is in print or rights have not been reverted for out-of-print books. Authors will receive all payments if the book has been reverted to them.
- More information is available at www.googlebooksettlement.com/.
- The settlement remains to be approved by the courts, so some change is possible.
The details are far too complex to cover here, but it is possible to outline the basic agreement. Google has recognized that copyright holders should control their works and receive payment for use of those works. The Authors Guild has settled for relatively modest payments — an initial flat fee (tentatively $60) for covered books, plus 63% of any income Google receives from its use of the works.
The settlement will cost Google $125 million up front, with further payments to follow as royalties. At least $45 million of the up-front money will go to rights-holders (authors and publishers, depending on who owns what rights), and $34.5 million will go to establish a Book Rights Registry, which will track rights and their usage, and distribute payments. It will charge a processing fee of 10-20% of the rights-holder's share (6.35% to 12.7% of the total payment to rights-holders).
If you're involved, you need to do something — at least register your claim, whether or not you decide to accept the terms of the agreement. NASW and other writers' organizations will start reminding members of this need. If you don't register, you run the risks of having your works be classed among the "orphan works" for which no rights-holder can be identified. Here's a list of FAQs based on material presented by the Authors Guild on the web (at www.authorsguild.org/advocacy/articles/settlement-resources.html) and discussed in teleconferences. Google has its own site www.googlebooksettlement.com/ where authors should register to keep abreast of developments, whether or not you ultimately opt in or out.
What's covered? The settlement applies only to books published before January 9, 2009. That includes both single-author books and separate payments for articles published in an edited book. Confusingly, articles are called "inserts" in the settlements, but if you wrote a chapter in an edited book, you're covered. Magazines are not covered.
What books are covered? The proposed agreement divides books into three classes: Books in copyright and in print, Books in copyright but out of print, and Books out of copyright (whether or not they are "in print" from conventional print publishers). The settlement covers only books in copyright but out of print, and all books in that class are covered unless the rights-holders opt out. Rights-holders of books in print as of January 9, 2009, can opt-in to the agreement — meaning you should check with your publisher. Books out of copyright can be reproduced without restriction under copyright law, as at present.
What are "orphan works"? Books for which no rights owner can be found. Books published after January 1, 1923 may still be in copyright if they were renewed after 28 years. If copyrights were not renewed, a book published before 1964 is out of copyright (in the public domain). For details on what's in copyright, see http://onlinebooks.library.upenn.edu/okbooks.html. In practice, it can be hard to reach authors of older works if they don't have an Internet presence, or if they have a common name, and it was even more difficult before the Internet. It's worse if the author has died, especially if the heirs don't know the rights exist or have any value — and even worse if the author died intestate or the heirs themselves have since died. Without the settlement those books could not be scanned.
Am I going to get rich? No. The proposed settlement specifies "Google will make a Cash Payment of at least US $60 per Principal Work, US $15 per Entire Insert, and US $5 per Partial Insert for which at least one Rightsholder has registered a valid claim by January 5, 2010." You can't claim duplicate payments for hardcover and softcover versions of the same book. Above that flat fee, Google will pay royalties based on selling advertising and access to the book. How much you get paid depends on how many people access your books. You'll see something, but don't expect a windfall.
Can I change my mind? You can "opt out" if, for example, you have had rights reverted and were able to sell the rights to another publisher, including POD or an electronic publisher.
Who owns the rights to my books? Check your contracts. Unless the book was a work for hire, you're normally entitled to a share — typically half and sometimes more — of licensing income, such as the Google payments. If you had the publisher revert rights, you get it all. If the book has not reverted, the settlement splits payments 50-50 unless it was published before 1987, in which case the author gets 65% and the publisher 35%.
What happens if the publisher doesn't respond to my request for reversion? The agreement creates a process called "quasi-reversion" which is recognized only in the bounds of the settlement. If you follow the prescribed process, which involves demanding reversion of rights and notifying the registry, and the publisher does not respond within a certain period, the book is automatically determined to be author controlled, and you will receive 100% of the payments.
Has Google already scanned my books? Probably if they're likely to be found in university libraries. Search Google Books for your name, and it should list your books first, followed by articles and references to your work. "No Preview Available" means just that. "Snippets" means the book has been scanned by a library (check "About this Book" to find which library). Limited Preview shows only certain pages, apparently under agreements with publishers. Normally, only books out of copyright are supposed to be displayed in their entirety. (You will also find magazine articles and citations referring to your books in other books in the Google Books listings, as well as works of and references to authors with similar names, so Google will need to do some cleaning up.)
What does this do for Google? Previously Google could only display the entire contents of books out of copyright (see http://onlinebooks.library.upenn.edu/okbooks.html) for details. The agreement allows Google to offer the contents of books that are still under copyright, but are out of print. Some out-of-print books are easy to buy used on the Internet, but others are very hard to find, expensive, or essentially forgotten. So this offers Google to offer more books on line, potentially increasing its revenues.
Where does the settlement stand in the courts? US District Court granted a preliminary approval on November 14. A final hearing on fairness will be held on June 11, 2009, so all is not yet cast in concrete.
General Comments from Jeff Hecht">General Comments from Jeff Hecht
This agreement is complex and messy. The biggest "win" I see is for readers and researchers who gain easy access to a large block of older books that otherwise are very hard to find outside of a large library. Otherwise the deal is full of uncertainty, and it's not clear how much money it's going to make for either Google or authors.
The settlement is controversial in some circles. The Authors Guild says they did the best they could under the circumstances, and I believe them, but some authors had hoped for larger payments. But I have heard objections to the "opt-out" requirement for out-of-print books, which reflect a deep division among authors about the extension of copyright terms far beyond the author's lifetime. Some authors want to retain rights as long as possible so they can pass income to their heirs. Others are more concerned that their work remain "alive" and accessible to the public, and would rather see their books go into the public domain after a shorter time. A real and overlooked issue is that our heirs may not pay as much attention to our works as we would like, just as our forebears did not always neatly divide their property before their deaths. That's the deepest and darkest quagmire created by copyright extension.
Whether or not the agreement makes sense for you depends on your situation. For most science and technology books that are out of print, it probably makes sense to take the money and accept the deal unless you have immediate prospects for reselling the book. You can always change your mind and opt out later. I don't expect the Google deal to earn me much, but for a little paperwork it's essentially free money, and it will keep my out-of-print books available. Your situation may be different.
In any case, if you have had any work published in book form, you should check out the settlement. If it's approved by the courts, you will need to provide contact details to the administrators. If you don't want to participate, you will need to opt out before a deadline specified by the court. Follow the links to Google and the Authors Guild pages above to get more details. Sign up to get more information when it becomes available.
Jeff Hecht, science & technology writer
NASW Freelance Committee
Additional Comments from Beryl Benderly">Additional Comments from Beryl Benderly
My understanding is that the settlement creates a brand-new and potentially substantial market for whole copies of out-of-print books, with money going to the rights holder.
Under the individual or home-use provisions of the settlement, users can only see a certain portion of the book and then must buy a non-reproducible digital copy. These can cost up to $29 each. The split of the money depends on the rights situation of the book, but could conceivably amount to something. Also, books used under the institutional license get payments that depend on the amount of use.
The settlement also allows authors to earn money by allowing advertisements to accompany their book. I certainly want my out-of-print books covered, because I have no practical way of making any money from them now. I could even foresee some books finding new publishers to put them back in print if they sell well under the settlement, at which point the author could opt the books out.
Of course, this may make it harder for authors to wrestle their publishers into granting reversions, but in practical terms, reversions aren't generally worth anything for the great majority of writers who have no practical way of marketing the book.
This is, of course, courtesy of Google, who bear the cost of the digitization that makes this possible. Of course, authors are always entitled to opt out and have somebody like iUniverse do the digitization and do the marketing themselves, but this settlement also gives authors the matchless and utterly effortless advertising tool of the Google books search engine.
Beryl Benderly
NASW Freelance Committee
Resources and Links">Resources and Links
More information from the Authors Guild www.authorsguild.org/advocacy/articles/settlement-resources.html
Register here to keep up with developments and stake your claim. This does not affect your rights to opt in or out later on. www.googlebooksettlement.com/
Information on copyright http://onlinebooks.library.upenn.edu/okbooks.html
UPDATES -- APRIL 2009">UPDATES — APRIL 2009 Jeff Hecht April 29, 2009
If you have ever written anything published in book form, you need to check the terms of the Google Book Settlement. Unfortunately, the documentation is about as user-friendly as an income tax return, although a court has just extended the deadline for opting out of the settlement or filing a formal objection by four months, putting those deadlines in early September. At this writing I have not seen the ruling, so I don't know the exact date, or whether the delay affects the deadline for filing claims, which originally was January 5, 2010. The rest of my comments are in date sequence.
Jeff Hecht April 11, 2009
Help is now available in coping with the form. Kristine Smith, chair of the digital rights management committee of Novelists Inc., has compiled a nice set of examples of how to fill out the Google Book Settlement claims, which covers books and articles published in the past, sometimes the distant past. The document is posted at http://www.nasw.org/mt-archives/pdf/Google_claim_instructions.pdf
Jeff Hecht April 20, 2009
I'm seeing a growing buzz of concern over the Google Book Settlement, which raises important issues for all of us who write books, write articles for books, or even think we might write books someday — to say nothing of issues for anyone who reads books.
The initial round of discussions focused on the economics for authors, particularly whether it would increase or decrease our potential income from backlist and out-of-print books. The new round of commentaries are warning about creating a potential monopoly, giving Google too much power, and warning of the potential impact on copyright law.
Sharon mentioned one attack on the monopoly issues, in which the Internet Archive is filing an objection to the settlement. A NY Times commentary cites other opposition as well. http://bits.blogs.nytimes.com/2009/04/17/opposition-to-google-books-settlement/?em
Law.com reports specifically on the Internet Archive action. http://www.law.com/jsp/article.jsp?id=1202430018507
Fiction Circus also has its own somewhat opinionated take. http://www.fictioncircus.com/news.php?id=350&mode=one
The legal papers are available through the Open Content Alliance (they have posted them on Scribd). http://www.opencontentalliance.org/
For other observations on the issue, I can recommend three short essays.
One is by Pamela Samuelson, a law professor at the University of California, Berkeley and a director of the Berkeley Center for Law & Technology. http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html
Author Cory Doctorow cites on Samuelson's arguments, and adds his own distinctive spin. http://www.boingboing.net/2009/04/17/google-book-search-s-1.html
A writer/editor who identifies herself as Alyssa about the potential impact on copyright law.
http://aqeldroma.livejournal.com/204553.html
There are a host of legal issues buried in a complex settlement. The basic document runs 140 pages, but even more pages of appendices, and what I've read seems about as convoluted and user-friendly as the income tax code. The settlement effectively changes copyright law in important ways that might better be resolved by Congress. The deadlines are tight, and I am getting the impression that a large number of affected authors have not been notified — particularly academics who write or contribute to books, but earn only a little money from them.
I expect this whole mess is likely to get hung up in the court system for years, but it's something we all should follow.
Jeff Hecht April 28, 2009
If you've been procrastinating about dealing with the Google Book Settlement, Publisher's Weekly reports that the judge handling the case has extended your deadline for objecting or opting out by four months to early September. http://www.publishersweekly.com/article/CA6654845.html?
April 29, 2009
"The Justice Department has begun an inquiry into the antitrust implications of Google's settlement with authors and publishers over its Google Book Search service, two people briefed on the matter said Tuesday." — The New York Times, April 29, 2009
http://www.nytimes.com/2009/04/29/technology/internet/29google.html
Jennie Dusheck April 30, 2009
I thought Amy Goodman's interview of Brewster Kahle was worth listening to. He is founder of the internet archive (the Wayback Machine).
http://www.democracynow.org/2009/4/30/google_faces_antitrust_investigation_for_agreement
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