Google Book Settlement Mark Two, continued

Edward Hasbrouck, co-chair of the Book Division of the National Writers Union, on the revised Google Book Settlement agreement: 'It's still fundamentally an opt-out, license by default system, not opt in.'

With this in mind, then, let's aim to establish the new timetable as this is set out in the memorandum to the revised settlement agreement. (Thanks to James Grimmelmann for extracting and assembling much of the relevant information [he also covers a couple more procedural points].)

• Monday, December 14, 2009: the Plaintiffs and Google will begin sending out notices of the revised agreement to the settlement class



• Thursday, January 28, 2010: deadline for opting out; also the deadline for sending objections to the court (for authors/publishers who opt in/stay opted in) or amicus briefs for those who are not parties to the settlement but wish to comment



• Thursday, February 18, 2010: final fairness hearing by the court



• March 31, 2011: new deadline for submitting cash payment claims for books and 'inserts' that Google scanned on or before May 5, 2009 without obtaining the permission of the rights-holder(s)



• April 5, 2011: deadline for applying to have a book removed from the digital copies held by the 'partner' libraries



• March 9, 2012: deadline for applying to have a book removed from Google's own databases

Notes on the above:

If you opted out of the settlement by 4 September 2009 (the original deadline) you will not have to opt out again (see Attachment H to the Amended Settlement Agreement, section 24).

However, if you opted out and are now, for some reason, having second thoughts about it, you may choose to opt yourself in (see the same section).

Notices of the revised settlement will be 'emailed or sent by postal mail to all persons who provided contact information on the official settlement website or on a Claim Form, who opted out of the original Settlement Agreement, or who filed an objection, amicus position or other statement with the Court' (Amended Settlement Agreement, section 12.2).

So if you opted out you ought to get a settlement notice shortly after the 14 December. (If you trusted yourself to the online opt-out procedure and you fail to get a notice, you may wish to write to the court stating that you have opted out, so as to be on the safe side. As I understand it, your letter should be filed with the court's papers and copied to the settlement administrator.) Likewise if you have claimed your books, you ought to receive a settlement notice.

On the cash payment claims: these are specifically for books that have been digitized by Google through its Library Program, not books that have been digitized with the permission of the publisher through its Partner Program. (To judge from emails I have received, some authors are very confused about this. Some books are being digitized through the Partner Program without the authors' realizing that this has been authorized by the publisher.)

If you neither opt out of the settlement nor claim your books by registering them on Google's database (see the settlement website) the US court will deem you anyway to be opted in – assuming the agreement is ratified, that is. That will mean that your work will be treated as unclaimed: Google may use it at will, within the terms of the settlement agreement, and you will have no control and receive no money.

That is apparently true in the US, at any rate. However, it has been suggested to me that UK authors may have some remedies in UK law. But of that, more later.

Note: the information above is given in good faith with absolutely no guarantees. If these dates and this info is crucial for you, check up. The main source is the memorandum to the revised settlement agreement.

Post Scriptum: Just in case it isn't clear from the above: under the amended GBS agreement, authors and publishers who have opted in and 'claimed' their books on Google's database now have a chance to change their minds and opt out again.

Google Book Settlement Mark Two, continued

Edward Hasbrouck, co-chair of the Book Division of the National Writers Union, on the revised Google Book Settlement agreement: 'It's still fundamentally an opt-out, license by default system, not opt in.'

With this in mind, then, let's aim to establish the new timetable as this is set out in the memorandum to the revised settlement agreement. (Thanks to James Grimmelmann for extracting and assembling much of the relevant information [he also covers a couple more procedural points].)

• Monday, December 14, 2009: the Plaintiffs and Google will begin sending out notices of the revised agreement to the settlement class



• Thursday, January 28, 2010: deadline for opting out; also the deadline for sending objections to the court (for authors/publishers who opt in/stay opted in) or amicus briefs for those who are not parties to the settlement but wish to comment



• Thursday, February 18, 2010: final fairness hearing by the court



• March 31, 2011: new deadline for submitting cash payment claims for books and 'inserts' that Google scanned on or before May 5, 2009 without obtaining the permission of the rights-holder(s)



• April 5, 2011: deadline for applying to have a book removed from the digital copies held by the 'partner' libraries



• March 9, 2012: deadline for applying to have a book removed from Google's own databases

Notes on the above:

If you opted out of the settlement by 4 September 2009 (the original deadline) you will not have to opt out again (see Attachment H to the Amended Settlement Agreement, section 24).

However, if you opted out and are now, for some reason, having second thoughts about it, you may choose to opt yourself in (see the same section).

Notices of the revised settlement will be 'emailed or sent by postal mail to all persons who provided contact information on the official settlement website or on a Claim Form, who opted out of the original Settlement Agreement, or who filed an objection, amicus position or other statement with the Court' (Amended Settlement Agreement, section 12.2).

So if you opted out you ought to get a settlement notice shortly after the 14 December. (If you trusted yourself to the online opt-out procedure and you fail to get a notice, you may wish to write to the court stating that you have opted out, so as to be on the safe side. As I understand it, your letter should be filed with the court's papers and copied to the settlement administrator.) Likewise if you have claimed your books, you ought to receive a settlement notice.

On the cash payment claims: these are specifically for books that have been digitized by Google through its Library Project, not books that have been digitized with the permission of the publisher through its Partner Program. (To judge from emails I have received, some authors are very confused about this. Some books are being digitized through the Partner Program without the authors' realizing that this has been authorized by the publisher.)

If you neither opt out of the settlement nor claim your books by registering them on Google's database (see the settlement website) the US court will deem you anyway to be opted in – assuming the agreement is ratified, that is. That will mean that your work will be treated as unclaimed: Google may use it at will, within the terms of the settlement agreement, and you will have no control and receive no money.

That is apparently true in the US, at any rate. However, it has been suggested to me that UK authors may have some remedies in UK law. But of that, more later.

Note: the information above is given in good faith with absolutely no guarantees. If these dates and this info is crucial for you, check up. The main source is the memorandum to the revised settlement agreement.

Post Scriptum: Just in case it isn't clear from the above: under the amended GBS agreement, authors and publishers who have opted in and 'claimed' their books on Google's database now have a chance to change their minds and opt out again.

Amended Google Book Settlement agreement: More about the changes

Previous posts on the Amended Google Book Settlement Agreement:

The Countries involved, and the New Plaintiffs

The Timetable

*

Changes to the kinds of works included

There are changes to the definitions of 'book' and 'insert' (that is, roughly, a short work, such as a story, poem, essay or foreword included in a larger work written or edited by a different author):

Music notation and children’s book illustrations are excluded from the definition of “Insert,” and works for which 20% of pages contain more than 20% music notation are excluded from the definition of “Book.” Books reproduced in microform are now excluded from the definition of “Book,” as are calendars. Finally, comic books and compilations of Periodicals now are explicitly treated as Periodicals, and are thus excluded from the definition of “Book.”

(Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Amended Settlement Agreement, pp. 4-5)

However:

The Amended Settlement does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement.

(Attachment N to the Amended Settlement Agreement: Supplemental Notice To Authors, Publishers And Other Book Rightsholders, section 18)

These changes let Google and the plaintiffs off the hook, or largely so, with some of the big objectors and critics: Proquest, the specialist academic publisher, a pioneer in microfilm publishing; D. C. Comics, publishers of Batman, Wonder Woman, etc; and the Song Writers Guild of America. According to the Memo in Support (p. 5 n.3) the SGA was permitted to engage in direct negotiations with the lawyers drafting the revised agreement, and have now agreed to withdraw their objection.

I imagine that the removal of all music notation from the scope of the settlement would have been necessary in any case, following the firm behaviour of EMI Music Publishing and Sony/ATV Music Publishing, both of whom opted out in letters to the court that made it perfectly clear they intended to defend their rights: also that these giants had no intention of providing Google with a helpful list of their millions of copyrighted works. Presumably Google's software engineers are currently scrambling to put together a program that can pick out musical notation on a scanned page.

The inclusion of children's book illustrations always was a bit of an anomaly, when all other illustrations were excluded. Representatives of photographers, illustrators and other visual artists twice tried to persuade the judge to include them as a settlement class, with separate representatives, and were twice refused (short summary here). There was no children's book illustrator among the original set of 'representative plaintiffs'.

So as I read the passages above, the children's book illustrators who are not the authors of the books they illustrate, and who have not assigned copyright in their pictures to the author/publisher, are now outside the scope of the Google Book Settlement: their images will not be displayed, or sold, under its provisions, and they are not bound by the agreement. (But if you are a children's book illustrator, do read these passages through yourself, and take proper professional advice if you are not clear about anything.)

Graphic novels and children's pictures books where the author and the illustrator are the same person are still included in the settlement, as Attachment N makes clear.

Why are illustrations not included in the GBS? It has been suggested that Google didn't want to mix it with Getty Images, and Corbis (owned by Microsoft), the giants of the stock image world.

The visual artists' organisations have been quite critical of the settlement. In their objection to the court, they stated, for instance, that they do not believe that the terms of the Proposed Settlement would provide fair compensation to all Visual Arts Rights Holders for past and future infringements arising from the G[oogle] L[ibrary P[roject] if they were included on the same basis as creators of other "Inserts"'.

The following passage is from the press release put out by the American Society of Media Photographers after the second occasion in which Judge Chin (presiding over the Google Books case) refused to admit the visual artists as plaintiffs: 'If allowing photographers and other visual artists to intervene would, as the Court stated, "put the entire settlement at risk," it is because, in ASMP's view, the settlement is fundamentally flawed and should not be approved by the Court.'

Amended Google Book Settlement agreement: More about the changes

Previous posts on the Amended Google Book Settlement Agreement:

The Countries involved, and the New Plaintiffs

The Timetable

*

Changes to the kinds of works included

There are changes to the definitions of 'book' and 'insert' (that is, roughly, a short work, such as a story, poem, essay or foreword included in a larger work written or edited by a different author):

Music notation and children’s book illustrations are excluded from the definition of “Insert,” and works for which 20% of pages contain more than 20% music notation are excluded from the definition of “Book.” Books reproduced in microform are now excluded from the definition of “Book,” as are calendars. Finally, comic books and compilations of Periodicals now are explicitly treated as Periodicals, and are thus excluded from the definition of “Book.”

(Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Amended Settlement Agreement, pp. 4-5)

However:

The Amended Settlement does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement.

(Attachment N to the Amended Settlement Agreement: Supplemental Notice To Authors, Publishers And Other Book Rightsholders, section 18)

These changes let Google and the plaintiffs off the hook, or largely so, with some of the big objectors and critics: Proquest, the specialist academic publisher, a pioneer in microfilm publishing; D. C. Comics, publishers of Batman, Wonder Woman, etc; and the Song Writers Guild of America. According to the Memo in Support (p. 5 n.3) the SGA was permitted to engage in direct negotiations with the lawyers drafting the revised agreement, and have now agreed to withdraw their objection.

I imagine that the removal of all music notation from the scope of the settlement would have been necessary in any case, following the firm behaviour of EMI Music Publishing and Sony/ATV Music Publishing, both of whom opted out in letters to the court that made it perfectly clear they intended to defend their rights: also that these giants had no intention of providing Google with a helpful list of their millions of copyrighted works. Presumably Google's software engineers are currently scrambling to put together a program that can pick out musical notation on a scanned page.

The inclusion of children's book illustrations always was a bit of an anomaly, when all other illustrations were excluded. Representatives of photographers, illustrators and other visual artists twice tried to persuade the judge to include them as a settlement class, with separate representatives, and were twice refused (short summary here). There was no children's book illustrator among the original set of 'representative plaintiffs'.

So as I read the passages above, the children's book illustrators who are not the authors of the books they illustrate, and who have not assigned copyright in their pictures to the author/publisher, are now outside the scope of the Google Book Settlement: their images will not be displayed, or sold, under its provisions, and they are not bound by the agreement. (But if you are a children's book illustrator, do read these passages through yourself, and take proper professional advice if you are not clear about anything.)

Graphic novels and children's pictures books where the author and the illustrator are the same person are still included in the settlement, as Attachment N makes clear.

Why are illustrations not included in the GBS? It has been suggested that Google didn't want to mix it with Getty Images, and Corbis (owned by Microsoft), the giants of the stock image world.

The visual artists' organisations have been quite critical of the settlement. In their objection to the court, they stated, for instance, that they do not believe that the terms of the Proposed Settlement would provide fair compensation to all Visual Arts Rights Holders for past and future infringements arising from the G[oogle] L[ibrary P[roject] if they were included on the same basis as creators of other "Inserts"'.

The following passage is from the press release put out by the American Society of Media Photographers after the second occasion in which Judge Chin (presiding over the Google Books case) refused to admit the visual artists as plaintiffs: 'If allowing photographers and other visual artists to intervene would, as the Court stated, "put the entire settlement at risk," it is because, in ASMP's view, the settlement is fundamentally flawed and should not be approved by the Court.'