More Noteworthy Clauses in the Google Book Settlement

I am in a maze of twisty little clauses, all alike.

Yesterday I went through the Google Book Settlement again carefully from beginning to end, clause by clause, to make sure there was nothing I had missed. I'll start with the wrily amusing part: Attachment K (number 11 out of the 13 attachments to the Settlement Agreement) is a list of newspapers and magazines in each country in which the parties to the Settlement agreed, as a condition of court approval, to place a notice to alert rights-holders affected by the Settlement (that is, pretty much every author, literary executor and publisher in the world). This is the list for the UK:

Sunday Times (London Times)
Daily Telegraph
Daily Mail
News of the World
Sunday Mail (Scotland)
Economist
International Herald Tribune
Wall Street Journal
Newsweek

I doubt whether the three US organs listed are read by many in the UK besides expat Americans. That's ok. The Sunday Mail is, apparently, the top-selling Scottish tabloid. As I am not Scots, I have no idea whether it is much read by Scottish authors and publishers. The Sunday Times, the Economist - fair enough. But 'News of the Screws'? 'The Daily Hate Mail'? (Which I see has been described by the website British Newspapers Online as 'a newspaper for Stepford wives'. Neat.) Then there is the 'Daily Torygraph' (strapline: 'the house organ of the Conservative party'). Well, ok. We know Frederick Forsyth reads it.

I begin to understand a bit more about why it took me months to begin to find out about the real implications of the Settlement; and why some of my academic friends still barely have a clue about it, despite being published authors and generally well-informed people. Conspicuously absent from this list: the 'Grauniad', the Independent, the Times, the Observer, the London Review of Books, the Times Literary Supplement.

One of the things I have found very worrying, studying the Google Book Settlement Agreement, is the generally inadequate advice and information that authors are being offered. For example, the website of the Writers Guild of Great Britain has on it a letter which was sent out to members in May. It states: 'The outcome of the “class action” case means that the author of each book scanned is being offered at least $60'. Sounds all right, if not exciting. At the current exchange rate $60 is about £35. However, it isn't correct. This is what the Settlement actually says will happen in the case of in-print books:

All payments under Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement ... shall be remitted by the Registry to the Publisher and flow through the royalty statements of the Publisher. The Publisher shall provide to the Author the appropriate splits or royalties as may be specified in the author-publisher contract for the Book or as the parties may otherwise agree. (Attachment A, 5.5 [see http://www.googlebooksettlement.com/intl/en-gb/Attachment-A-Author-Publisher-Procedures.pdf])

Interestingly, the Writers Guild had it right last autumn, when it reported in a news item: 'Google will pay at least $60 (£36.74) per title, and authors will receive a royalty.'

How much of a royalty? Who knows? It will be up to the publisher to give the author a share 'as may be specified in the author-publisher contract' - except that no existing contract will make provision for the Google Book Settlement - it may provide for electronic rights in some shape or form, but there may be room for a world of argument over what these rights cover and how the Google plans fit in - 'or as the parties may otherwise agree' - in other words, the publisher may toss the author whatever bone they wish. And if the author doesn't like it, he or she will have to go into arbitration in the US ('If an Author wishes to dispute the split or royalty rate paid by the Publisher on such revenues, Article VII [regarding arbitration] shall apply').

Unless the publisher is exceptionally mean, the author might be able to buy a few drinks down the pub.

Note that even if the publisher doesn't have a licence for the electronic rights and/or the US rights, Google will pay the money to the publisher.

Only in the case of books that are out-of-print, where the rights have reverted to the author, will the author receive the full $60. In the case of any books published after 1987 which are out of print but still under license to a publisher, the publisher will receive half the $60 - even if the author has retained the electronic rights; even if the author has retained the US rights. (For books in this situation published before 1987, the author-publisher split is 65%–35%.)

So: everywhere the cry goes up to authors: Roll up! Roll up! and claim your $$$ under the Great Google Give-away.

But the dollars are definitely jam tomorrow: they will not be paid for many months; and for most authors they really won't amount to very much money at all. And in return, authors will find themselves bound by what amounts to a non-negotiable perpetual contract with Google Inc (or its assigns), in the shape of an agreement so long, complicated and almost impenetrably tedious that it makes hardened lawyers blench. To quote New York agent and attorney Lynn Chu: 'Behold the Settlement Agreement in its 385 pages of clotted glory. You trust that thing?'

More Noteworthy Clauses in the Google Book Settlement

I am in a maze of twisty little clauses, all alike.

Yesterday I went through the Google Book Settlement again carefully from beginning to end, clause by clause, to make sure there was nothing I had missed. I'll start with the wrily amusing part: Attachment K (number 11 out of the 13 attachments to the Settlement Agreement) is a list of newspapers and magazines in each country in which the parties to the Settlement agreed, as a condition of court approval, to place a notice to alert rights-holders affected by the Settlement (that is, pretty much every author, literary executor and publisher in the world). This is the list for the UK:

Sunday Times (London Times)
Daily Telegraph
Daily Mail
News of the World
Sunday Mail (Scotland)
Economist
International Herald Tribune
Wall Street Journal
Newsweek

I doubt whether the three US organs listed are read by many in the UK besides expat Americans. That's ok. The Sunday Mail is, apparently, the top-selling Scottish tabloid. As I am not Scots, I have no idea whether it is much read by Scottish authors and publishers. The Sunday Times, the Economist - fair enough. But 'News of the Screws'? 'The Daily Hate Mail'? (Which I see has been described by the website British Newspapers Online as 'a newspaper for Stepford wives'. Neat.) Then there is the 'Daily Torygraph' (strapline: 'the house organ of the Conservative party'). Well, ok. We know Frederick Forsyth reads it.

I begin to understand a bit more about why it took me months to begin to find out about the real implications of the Settlement; and why some of my academic friends still barely have a clue about it, despite being published authors and generally well-informed people. Conspicuously absent from this list: the 'Grauniad', the Independent, the Times, the Observer, the London Review of Books, the Times Literary Supplement.

One of the things I have found very worrying, studying the Google Book Settlement Agreement, is the generally inadequate advice and information that authors are being offered. For example, the website of the Writers Guild of Great Britain has on it a letter which was sent out to members in May. It states: 'The outcome of the “class action” case means that the author of each book scanned is being offered at least $60'. Sounds all right, if not exciting. At the current exchange rate $60 is about £35. However, it isn't correct. This is what the Settlement actually says will happen in the case of in-print books:

All payments under Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement ... shall be remitted by the Registry to the Publisher and flow through the royalty statements of the Publisher. The Publisher shall provide to the Author the appropriate splits or royalties as may be specified in the author-publisher contract for the Book or as the parties may otherwise agree. (Attachment A, 5.5 [see http://www.googlebooksettlement.com/intl/en-gb/Attachment-A-Author-Publisher-Procedures.pdf])

Interestingly, the Writers Guild had it right last autumn, when it reported in a news item: 'Google will pay at least $60 (£36.74) per title, and authors will receive a royalty.'

How much of a royalty? Who knows? It will be up to the publisher to give the author a share 'as may be specified in the author-publisher contract' - except that no existing contract will make provision for the Google Book Settlement - it may provide for electronic rights in some shape or form, but there may be room for a world of argument over what these rights cover and how the Google plans fit in - 'or as the parties may otherwise agree' - in other words, the publisher may toss the author whatever bone they wish. And if the author doesn't like it, he or she will have to go into arbitration in the US ('If an Author wishes to dispute the split or royalty rate paid by the Publisher on such revenues, Article VII [regarding arbitration] shall apply').

Unless the publisher is exceptionally mean, the author might be able to buy a few drinks down the pub.

Note that even if the publisher doesn't have a licence for the electronic rights and/or the US rights, Google will pay the money to the publisher.

Only in the case of books that are out-of-print, where the rights have reverted to the author, will the author receive the full $60. In the case of any books published after 1987 which are out of print but still under license to a publisher, the publisher will receive half the $60 - even if the author has retained the electronic rights; even if the author has retained the US rights. (For books in this situation published before 1987, the author-publisher split is 65%–35%.)

So: everywhere the cry goes up to authors: Roll up! Roll up! and claim your $$$ under the Great Google Give-away.

But the dollars are definitely jam tomorrow: they will not be paid for many months; and for most authors they really won't amount to very much money at all. And in return, authors will find themselves bound by what amounts to a non-negotiable perpetual contract with Google Inc (or its assigns), in the shape of an agreement so long, complicated and almost impenetrably tedious that it makes hardened lawyers blench. To quote New York agent and attorney Lynn Chu: 'Behold the Settlement Agreement in its 385 pages of clotted glory. You trust that thing?'