Google Settlement
[For the latest on what's happening with the Google Settlement click to this page: Google Update]
As you’ve no doubt been reading and hearing, there is a great deal of talk about the Google Settlement. So what exactly is this Settlement, and what does it mean to you? Here at FinePrint we have been studying and discussing this issue internally for some months now, and also with colleagues outside the company in an effort to understand and simplify for our clients and agents a complex and somewhat moving target so that we can best advise you on this issue.
This letter is the result of those discussions and we would like to thank AAR, the Author’s Guild, Sterling Lord Literistic, the Donald Maass Agency, and our own Janet Reid in particular for their opinions as how best to handle this cutting edge publishing issue.
First of all, the settlement is tentative, subject to court approval of two lawsuits that challenged Google’s widespread scanning of books and is not likely to be confirmed until September or October 2009. (The dates have been revised, see below.) It was motivated by concerns from published authors that Google was going to allow potential readers of their books free access to the book digitally, the loss of book sales income (i.e., royalties) impacting the ability of that author to make a living. So they brought what is known as a “class action” suit — the class being published authors of copyrighted works — to stop Google, as they saw it, from essentially giving away their books for free. Google denied that this was what they were doing, and claimed that allowing people doing searches the ability to excerpt pieces of anything they scanned, whether or not it was copyrighted, was a legal exercise of the Fair Use law. Getting confused yet? Don’t worry if you are, this is just a very generalized “in a nutshell” explanation of the background.
The Bottom Line
In general, FinePrint feels that authors should get involved in this settlement and register their works. If you need help with this contact your agent here or those people listed below and we’ll endeavor to help you, but YOU should take the initiative because the choices to be made are personal and individual. Also, when an author registers a title they gain control not only over Google’s uses, but they can also override their publisher’s decision to allow Google usage. It’s not clear that agents have that power, so let’s err on the side of caution for the moment.
Registering titles isn’t difficult and it isn’t a horrendous amount of work. Here’s the url: http://www.googlebooksettlement.com.
Revenue from Google’s usage (in cases where a book is under contract and/or copyrighted) will be collected by publishers. Such revenue is like any other revenue that gets accounted on a royalty statement, such as book club licenses and permissions fees. We don’t see future Google revenues being any different.
Contrary to some published essays on this subject (most notably one in the Wall Street Journal mentioned at the bottom of this email) the Google Settlement affirms an author’s right to revenue when their work is made accessible online, and establishes a way for them to get paid in the freewheeling, everything-for-free internet age.
Some Background
In 2004, Google made arrangements with several cooperating libraries to scan (i.e. digitize) their entire contents, regardless of whether or not the books in those libraries were copyrighted. In some cases they displayed snippets of the books (including those still in print or protected by copyright law), on the Google website. Google did not ask permission from rightsholders to do this. In response, several authors and publishers sued Google, claiming copyright infringement. After several years of negotiations, the parties agreed to settle the lawsuit out of court. As part of the settlement, Google agreed to pay a minimum of $45 million to compensate rightsholders whose works were scanned without their permission as of May 5, 2009. The settlement created a new non-profit organization called the Book Rights Registry, which will maintain a database of rightsholders and collect and distribute Google revenue to the appropriate rightsholders.
So, how does this affect YOU?
If your book was wrongly scanned you may well be entitled to damages ranging from $60 and $300 per book.
Questions you may have:
How do I know if my book has been scanned? When you register your book (see below) you will be able to find out on the registry site.
What happens if I don’t register my books? Under the terms of the settlement, Google can keep scanning and making books accessible online. You can prevent them from doing that, or limit the ways in which they use your books—but only if you register your titles.
Oh come on, do I have to register ALL my titles? We think you should. Not only will that safeguard your work in the digital world, but it may well bring you revenue down the road. It will also give you control over the ways Google uses your books—or whether they can use them at all. We recommend that you register new titles as they are published.
How much will I get from Google? That’s a hard question to answer definitively. But when Google makes money from making your books accessible online, two thirds of that money will be paid to you—or to your publisher if a book’s in print and under contract. What hasn’t yet been worked out is what the split with a publisher will be as it’s not covered under the settlement.
What do all these deadlines mean, I’m really confused? As well you might be. Here are the deadlines as reported to us by the Author’s Guild:
January 5, 2009: The official settlement website, http://www.googlebooksettlement.com/ — is functional and ready to accept claims. The claims administrator begins sending notice to rights holders around the world and publishes the notice in newspapers and magazines. A preliminary list of books covered by the settlement becomes available to rights holders.
**May 5, 2009: This has now been delayed until early September 2009. The last day to opt out of the settlement as a whole. The online list of books covered by the settlement is final.
(For more detail go to: http://www.publishersweekly.com/article/CA6654845.html)
**June 11, 2009: This is now rescheduled to October 7, 2009
A court hearing will take place to determine whether the Settlement will be approved by the Court and then take effect.
January 5, 2010: The claims filing deadline.
The deadlines are only important if you want to “opt out” of the Settlement altogether, or if your books were scanned and you are claiming a share of the settlement money (January 5, 2010). Otherwise, you can—and should—register your titles at any time.
How do I register my books? If you want to earn the equivalent of “digital royalties” from anyone accessing your work via Google, and control what and how Google uses your books electronically, then you need to open an author account with Google. Potentially, all authors of books published before 2009 are included in the “class” that brought one of those suits. The Authors Guild brought the “class action” suit for authors, and they provided AAR (Association of Author’s Representatives) members, of which we are one, two documents relating to the Settlement that we are now attaching to this email. You might also want to check out the following website urls:
www.books.google.com
www.googlebooksettlement.com.
Google Notice-ENGLISH.PDF;
Google-Authors-Paper-Claim-Form.pdf;
To open a Google account
(a) Go to the Settlement website and fill in the form (keeping a record of your user name and password);
(b) use the account to claim all books and any inserts;
(c) in a few months, revisit the account to make detailed elections as to how you wish your books to be displayed and priced (or removed if you choose this option);
(d) monitor the account periodically to change the Display Use and pricing elections if you so choose; and
(e) if you have questions about the Settlement or the website, email or call the Settlement Administrator at or 1-888-356-0248 BookSettlement@RustConsulting.com
We also believe that it might be a wise move on the part of published authors to join the Author’s Guild, which offers many things to writers, not the least of which is free legal advice, however generic it can sometimes be, all for the price of the annual membership. Paul Aiken and Jan Constantine of the Authors Guild are available to help members deal with this issue.
Paul Aiken is reachable at paiken@authorsguild.org
Jan Constantine is reachable at Jconstantine@authorsguild.org
Counsel for Author Sub-Class: Michael J. Boni and Joanne Zack, Boni &
Zack LLC, Bala Cynwyd, PA, 610-822-0200, http://www.bonizack.com,
bookclaims@bonizack.com
Counsel for Publisher Sub-Class: Jeffrey P. Cunard and Bruce P. Keller,
Debevoise & Plimpton LLP, New York, NY, 212-909-6000,
http://www.debevoise.com, bookclaims@debevoise.com
SOURCE Google Settlement Administrator
Michael J. Boni and Joanne Zack, Boni & Zack LLC, Counsel for Author
Sub-Class, 610-822-0200, bookclaims@bonizack.com;
or Jeffrey P. Cunard and Bruce P. Keller, Debevoise & Plimpton LLP, Counsel for Publisher Sub-Class, 212-909-6000, bookclaims@debevoise.com
Some Last Words
In an effort to try and be as comprehensive as possible we’ve included links to some newspaper articles. One from the Wall Street Journal has received some notoriety mainly from what we think is its inaccuracy, but you might wish to read it and decide for yourself. FinePrint blogging Empress Janet Reid has written an excellent clarification and rebuttal of the piece on her blog.
Here are some links to articles in the New York Times and the New York Review of Books to start you off that hopefully will give you some understanding of the breadth and scope of the issue.
http://www.nytimes.com/2008/10/29/technology/internet/29google.html (October 28, 2008)
http://www.nytimes.com/2008/11/10/business/worldbusiness/10kindle.html (November 9, 2008)
http://www.nytimes.com/2009/04/04/technology/internet/04books.html?_r=1&scp=3&sq=google&st=cse (April 3, 2009)
From the New York Review of Books
http://www.nybooks.com/articles/22281 (February 12, 2009)
From BusinessWeek
http://www.businessweek.com/the_thread/techbeat/archives/2009/04/letter_read_the.html (April 29, 2009)
Best regards,
FinePrint Literary Management Team