Why Authors and Publishers Should Be Concerned
Take Action Before 5 May 2009
This is a long posting but we hope it will save you a lot of time and heart-ache in the end. Please note that if you are as worried about what you learn here as we are, you can act by May 5, 2009 to avoid being bound by an imminent agreement between the Authors Guild and Google.
Please add your comments below or write to us directly.
Toward the end of 2004, Google began its Library Project, in which it offered to digitize entire library collections, ostensibly so that library patrons could have broad online access to a comprehensive searchable database of material.
As a part of its agreement with libraries that signed up for the project, Google began making copies of the books it digitized to keep for its own use. Its intention in doing this was to extend its more modest Book Search Program to books not previously covered.
The Book Search Program makes available snippets of text from individual books entered into the program in response to word searches in its search engine. The Library Project would do the same to all books within a participating library collection.
Google’s Library Project can be seen as an expanded Book Search Program with one important distinction. While individual publishers could choose to sign up for the Book Search Program or not, they were not consulted at all in the decision to digitize their work in the Library Project.
Neither the libraries nor Google obtained permission from copyright holders to make copies of their books. Some of the libraries involved in the project have asserted that they only wanted Google to copy books that were in the public domain, but Google was copying everything and anything it could.
In 2005, the Authors Guild and five individual authors whose books were in the University of Michigan library, the first library copied, filed a class action lawsuit to stop Google from continuing to copy books still under copyright.
The original lawsuit identified the class as all rightholders whose books were held in the University of Michigan library collection, the only library collection which had been copied at that time. Since then, Google has continued to copy books, and reportedly has copied more than 7 million books total.
In 2006, as the extent of Google’s activities became more widely known, a separate lawsuit was filed by the Association of American Publishers, and five large publishing houses: McGraw-Hill, Pearson Education, Penguin, Simon & Schuster, and John Wiley & Sons. Shortly after the second lawsuit was filed, the two lawsuits were combined.
Some time after the combined lawsuit was filed, the Authors Guild decided that the Google lawsuit presented an opportunity to for it to set up a registry similar to the one that the Artists Guild apparently has operated for artists.
So the Authors Guild initiated negotiations with Google, proposing to let Google copy every book in the US market (which would include foreign books as well as US authors) in return for establishing an authors' 'Registry'.
The Registry would supposedly pay copyright holders at least $60 for any book scanned into Google’s database before the settlement. In addition, copyright holder’s will be paid 63% of any revenues Google obtains from a patron using its database to access the copyrighted work.
There is no guarantee that Google will charge per access, and consequently no guarantee than any royalties subsequent to inclusion in the database would be paid.
If Google does charge for access to a copyrighted work, it would collect revenues from database users – i.e. either libraries enrolled in the project, or the patrons of those libraries. Out of this fee, Google would take its cut and send the copyright holder’s share to the Registry.
The registry would then send the balance to the individual copyright holder, minus an unspecified operating fee for participation in the Registry. Payment would be made according to some plan not specifically outlined in the settlement.
As the negotiations between the plaintiffs and Google ripened into a settlement agreement by October, 2008, the original class covered under the suit was broadened to include all authors and publishers in the US, and essentially any author or publisher anywhere in the world with a copyrighted book in the US library system.
This broadening of the suit occurred despite the fact that the Authors Guild counts among its membership only a tiny fraction of the total number of authors and publishers covered by the settlement. The settlement also includes illustrators of children’s books, and other rights holders now protected by existing copyright law.
The settlement allows Google to insert advertising of its own choosing into any book available in its database and to derive an additional income stream from this advertising, without any compensation to the copyright holder. Nor does the copyright holder have any control over which ads appear ensconced within the original work.
The settlement also allows Google to essentially redefine which books are in the public domain, and thus available for appropriation by the Library Project without any compensation at all to copyright holders.
According to existing copyright law, a book does not enter into the public domain until 70 years after the death of the copyright holder, and only then if the copyright is not renewed by the copyright holder’s heirs.
According to the settlement, any book will be considered to be in the public domain when it has been out of print for one year. According to Google’s definition, out-of-print means unavailable through major bookstore chains and/or retail outlets.
A book sold by an author on his own website could potentially be considered out-of-print as soon as it came off the presses, if that author did not have a major contract with a distributor with access to the book trade.
Most books published by self-published authors and many published by small independent publishers would, under this agreement, essentially have no copyright protection at all, whether registered with the Copyright Office, or not.
While some major publishers and libraries are hailing this settlement as the greatest innovation in the book trade since the Gutenberg Press, most authors and small publishers stand to lose the right to just compensation for their hard creative work.
As a Fair Trade Publisher, Ancient Tower Press opposes this agreement for the following reasons:
2. An ambitious program like this could potentially be of benefit to some authors and publishers, who are more interested perhaps in getting their work widely distributed than they are in being financially compensated. But again, the decision whether or not to participate in this agreement should rest with the author and the publisher, not with the parties to a lawsuit in which most authors and publishers will participate only as members of an ill-defined class.
3. In order not to be affected by this agreement, individual copyright holders can choose to Opt Out. This sets a dangerous precedent, since it paves the way not just for Google, but for other large corporate entities to lay claim to rights previously assumed to belong to the author or publisher, unless signed away by contract. Any proposed settlement that makes copywritten material available to anyone on demand, without the copyright holder’s express consent, is a violation of basic Fair Trade Principles and existing Copyright law.
4. Prior to this settlement, according to existing law, Google would have had to pay up to $125,000 for each instance of copyright infringement, i.e each inclusion of a copywritten book in its database without permission. The settlement allows for Google instead to pay a paltry $60 per copyright infringement and only if copyright holders agree to be part of the settlement by not Opting Out of it.
5. Even if an author or publisher opts out of this agreement, this will not stop Google from digitizing copywritten work or making it available to library patrons. It will preserve the copyright holder’s right to sue Google for copyright infringement, but it will also put the burden on the copyright holder to pursue any claims he or she may have under copyright law. Given Google’s deep pockets, this creates a grossly unfair advantage to self-published authors and small publishers struggling to survive in the marketplace.
6. If an author or publisher chooses to remain in the lawsuit, or does nothing, he or she will be legally bound by the settlement. In this case, the settlement will essentially become a contract, not only between the copyright holder, Google, participating libraries, and the Registry, but it will effectively amend any existing contracts between authors and their publishers. This is not something that should be decided by a court of law in a class action lawsuit, but rather negotiated between individual copyright holders and those – like Google – who wish to participate in and benefit vicariously from those rights.
7. If an author or publisher chooses to remain in the agreement, it is doubtful that he or she will receive much compensation at all through the registry. As it stands now, most participating libraries make the digital services provided by Google to their patrons free of charge. Even if they were to charge some minimal fee, say for the download of all or part of a book, it is likely that most of this minimal fee would be eaten up by Registry fees, which according to the settlement, are charged to copyright holders.
8. For those who remain in the Registry, Google will earn money not just from the capacity to make copywritten material available to library patrons, but also from the ads they will insert into the copywritten material, without the copyright holder’s consent or participation. The copyright holder, whose work makes possible the juxtaposition of ads and content, will not benefit at all from this revenue stream.
9. If a copyright holder chooses to remain in the lawsuit, he or she will have the right to request that some or all their books not be made available through Google’s database. If the copyright holder’s books are already in Google’s database (which is a distinct possibility), Google will have up to ten months to remove them. If Google fails to honor this request, or fails to make payments that are due the copyright holder, legal recourse is limited to an arbitration process, which will take place in NY no matter where you live. The copyright holder must not only pay his or her own attorney fees, but must also split the cost of the arbitration. Arbitration will be a significant advantage to Google, effectively indemnifying them from liability for anything they do, whether by negligence or intentional violation of copyholder rights.
Since the situation of individual authors and publishers can vary greatly, you can only really decide whether or not you should participate in this agreement by reading the actual documents, or by hiring a copyright attorney to read them for you. They are long, obtuse and confusing, but it would behoove anyone engaged in writing, illustrating, or publishing books to be informed about the issues.
The complete documents are available from the court's website.
A shorter summary (41 pages) of the 300 page proposed settlement is available at the Authors Guild website (select #57 on the list of documents).
Detailed information about the settlement, including important terms, the claims process, and key dates is available from Google.
These documents and assistance with the claims process are also available from the Settlement Administrator:
- by email: BookSettlement_en@rustconsulting.com or
- telephone: 1.888.356.0248.
Questions about the lawsuit may also be addressed to the attorneys representing the authors (and ostensibly the illustrators) class:
- Michael J. Boni - phone: 610 822 0201 or email: MBoni@bonizack.com
- Joanne Zack - phone: 610 822 0202 or email: JZack@bonizack.com
- Joshua D. Snyder - phone: 610 822 0203 or email: JSnyder@bonizack.com
An article analyzing the settlement from the author's point of view
Comments by those who want free access to all books
A free online seminar from the Copyright Clearance Center: “The Authors Guild, AAP, Google Settlement: What Authors & Publishers Need to Know as May 5th Approaches” – Tuesday, April 14, 2009 11:00 am CDT
After reading the documents, you can decide whether you should:
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 will determine whether to approve the settlement at a Fairness Hearing on June 11, 2009 at 1:00 p.m.
If you are opting out of the agreement, you must decide if you are a member of the author sub-class, or publisher sub-class, or both, and indicate this in your documents to the court.
All documents to be filed with the court must be mailed to both:
J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007
and
Google Book Search Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
In addition, you must also serve a copy of such papers by email or first class mail to the following attorneys, and include a statement that you have done so in the footer of the document you file with the court:
Counsel for the Author Sub-Class:
Boni & Zac LLC
15 St. Asaphs Road
Bala Cynwyd, PA 19004
bookclaims@bonizac.com
Counsel for the Publisher Sub-Class:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
bookclaims@debevoise.com
Counsel for Google:
Keker & Van Nest LLP
710 Sansome Street
San Francisco, CA 94111
bookclaims@kvn.com
All documents filed with the court must include the name and number of the lawsuit, The Authors Guild, et al., vs. Google, Inc., case number 1:2005cv08136.
The closing must include your name, address, telephone number and signature as well as the name and address of your lawyer, if one is appearing for you. We would also recommend that you include your email address.
You can copy the style from the header and footer in court documents which can be seen here.
Title your document "Notice of Opt Out."
The body of your notice can be as simple as: “I, so-and-so publisher/author, business name, address, phone, have decided to opt-out of the proposed settlement. I hereby request that Google not include copies of any of my work, in whole or in part, including but not limited to the following (list work with ISBNs) in any of its databases. I have sent a copy of this document to counsel for the parties by mailing it to (show names/addresses) by first class mail, this the (date) of (month) (year).”
If you decide you need an attorney to represent you or draft an opt-out-notice for you, one who is knowledgeable about the case and has expressed an interest in helping is Charles Chalmers.
He can be reached at
Fairfax, California 94930
Tel: 415 860-8134
Fax: 801 382-2469
Email: cchalmers@allegiancelit.com.
It may also be possible to opt-out online (ideally back this up with written documentation to the court, as indicated above).
Become informed and take appropriate action.
For Fair Trade in Publishing, Joe Landwehr