Background

In 2004, Google announced its plan to partner with major research libraries (initially Harvard University, New York Public Library, Stanford University, University of Michigan, and University of Oxford) to non-destructively scan the books in their collections. The number of partner libraries has increased to more than 20 since 2004. As a separate but complementary project, Google also made agreements to work with publishers to obtain digital copies of newly published books to add to the Google books database. Some perceived outcomes for this project:

  • For Google (and end users) a full text searchable database of books;
  • For the library partners digital copies of the books they held in their collections;
  • For participating publishers a mechanism to drive users to newly published books
Shortly after the Library Project was announced, the Authors Guild, the Association of American Publishers, and some authors sued Google in a class action suit, arguing that Google's efforts to scan works held in libraries violated their copyrights. Google maintained that their use (scanning and the creation of the database) was both "fair use" and "transformative".

The Settlement

On October 4, 2012, the Association of American Publishers and Google announced a settlement agreement that will provide access to publishers' in-copyright books and journals digitized by Google for its Google Library Project, which will end seven years of litigation. This settlement does not effect the current litigation between Google and the Author's Guild.

Note: On March 22, 2011, the "Amended Settlement Agreement" for the Google Book Settlement was denied.

A proposed settlement for this suit was announced on October 28, 2008. The settlement is complex and focuses on those materials that are both still protected by copyright but are out-of-print. The settlement specifically excludes:

  • Books in public domain,
  • Books that are both protected by copyright and still in print, and
  • Any periodicals including professional journals, magazines, and newspapers.
Key points from the settlement are:
  • The settlement does not apply to books or inserts published after January 5, 2009.
  • This is a class action suit; members of the class are all persons and entities that, as of January 5, 2009, own a U.S. copyright interest in one or more Books or Inserts that are "implicated by a use" authorized by the Settlement. "Implicated by use" means that the right that you own is one that Google will be exploiting in using the Book. Such uses would include the reproduction or display of any content from a Book. There are 2 sub-classes: an author sub-class and a publisher sub-class.
  • Google will continue scanning in-copyright books from library collections into its search database; publishers and authors agree not to sue; Google will continue to enable users to search the full content of the scanned books.
  • A Book Rights Registry (BRR) (funded by Google and run by the publishers and authors) will be the mechanism used by rightsholders (publishers and authors) to register with Google and the mechanism used to collect and distribute royalty payments to rightsholders for the right to display more of the text of books than is currently displayed.
  • 63% of the revenue generated will be distributed to the appropriate rightsholders; Google will keep 37% of the revenue.
  • For copyrighted books that are out of print.-- by default Google will show both the "snippet view" and a "preview" (up to 20% of a work, although no more than 5 adjacent pages, with additional limitations for fiction, anthologies of drama, dictionaries. No printing or copy-and-paste is allowed. See the Google Books Access Matrix (http://tinyurl.com/cy6qhh) for more information. The rightsholders can opt out of this option.
  • For copyrighted books that are in print, only bibliographic information will display in Google Books; the rightsholder will have to opt in if they want users to have more access to the book.
  • Individual users can purchase online access to the full text of in-copyright, out-of-print books. This access also gives them printing and copying authorizations.
  • Google will provide free Public Access Service (PAS) to each public library and not-for-profit higher education institution that requests it. A user sitting at a PAS terminal will be able to view the full text of all books in the Institutional Subscription Database (ISD), which generally corresponds to books in the in-copyright, out-of-print category. (http://wo.ala.org/gbs/wp-content/uploads/2009/01/gbs-2-pager-final.pdf)
  • Google will sell access to the ISD to universities and users will be able to view the full text of all the books in the ISD. These authorized users would have the same printing and copying permissions and individual users. In addition, these authorized users can make books in the ISD available to other authorized users through hyperlinks (course reserves or course management systems, for example). (http://wo.ala.org/gbs/wp-content/uploads/2009/01/gbs-2-pager-final.pdf)
  • The settlement must be approved by the Court, and that approval has not yet been received.
Modifications to the Original Settlement

On November 13, 2009, the parties to the settlement filed an amended agreement with the U.S. District Court for the Southern District of New York. Using the summary provided by Google, below is a list of the changes:

  • The settlement will now onlyinclude books that were either registered with the U.S. Copyright Office or published in the United Kingdom, Australia, or Canada. Most non-English language books will be excluded.
  • The amended settlement agreement requires the Book Rights Registry to search for rightsholders who have not yet come forward and to hold revenue on their behalf; a portion of the revenue generated from unclaimed works may, after 5 years, be used to locate rightsholders and after 10 years, may be distributed to nonprofits benefiting rightsholders and the reading public, and may be provided to the appropriate government authority in compliance with state property laws. The Registry will now also include a Court-approved fiduciary who will represent rightsholders of unclaimed books, act to protect their interests, and license their works to third parties, to the extent permitted by law.
  • As Google originally announced, any book retailer will be able to sell consumers online access to the out-of-print books covered by the settlement, including unclaimed books, with rightsholders receiving 63% of the revenue and retailers keeping the majority of the remaining 37%. This provision is now explicitly written into the revised agreement as a Google obligation.
  • The amended settlement does not change the primary access models outlined in the original agreement. However, in the revised agreement, possible additional access models to which Google and the Registry might agree in the future are now limited to: print-on-demand, file download, and consumer subscription. Additionally, the amended agreement also enables the Registry to increase the number of terminals at a public library building, and it clarifies that rightsholders can choose to make their books available for free or allow re-use under Creative Commons or other licenses. Rightsholders can also choose to modify or remove restrictions placed on Google's display of their books, such as limits on the number of pages that users can print.
  • The amended settlement clarifies how Google's algorithm will work to price books competitively. The algorithm used to establish consumer purchase prices will simulate the prices in a competitive market, and prices for books will be established independently of each other. The agreement also stipulates that the Registry cannot share pricing information with anyone but the book's rightsholder. In addition, the amended settlement removes the non-discrimination clause that pertained to the Registry licensing of unclaimed works. The Registry is free to license to other parties without ever extending the same terms to Google.

Google also provides an FAQ for the amended settlement.

In February 2010, Judge Denny Chin held a hearing on the amended settlement. As of summer 2010, he has not yet returned his ruling.

Impact on Baylor Authors

If you are an author of a book that is in-copyright and registered with the US copyright Office prior to January 5, 2009, you may want to explore your options:

  • Search Google Books to see if any of your books or books with your inserts are in the database.
  • Identify the copyrights that you own, either by reviewing the agreements you signed with the publisher or by contacting the publisher. Note for staff: Usually the copyright for "works for hire" are held by the entity for which you worked at the time you produced the work unless alternative agreements were signed.
  • If you assigned some or all of the rights to the publisher, contact the publisher and ask how they plan to address the Settlement.
  • If you are a rightsholder with books in Google Books, you can remain in the Settlement. This means that you will be bound by the court's ruling, including a release of claims against Google.
  • If you are a rightsholder with books in Google Books, you can opt out of the Settlement. This means that you retain your right to sue Google individually. You must opt out in writing by September 4, 2009.
  • Those who decide to remain in the Settlement can also file an objection. Objections must be filed by September 4, 2009.
  • File a claim for a cash payment (if you are eligible) by March 31, 2011 (extended from January 5, 2010).
  • If you are the rightsholder and the book is out-of-print, you can opt out of the default mode (making snippets and previews available). By opting out, only bibliographic information will display for your book; however, users may be more inclined to purchase access to the full text if you let them preview the full text.
  • If you are the rightsholder and the book is still in print, consider opting in to the default mode (making snippets and previews available) because this ability to preview your book may drive more users to purchase your book.
  • For additional information go to the Google Book Settlement website.
  • For questions, contact copyright@baylor.edu.
Timeline

Date
Action
January 5, 2009 Publication deadline and notice of commencement date.
  • Qualifying books must be published and registered with the US Copyright office before this date;
  • Notice of the Settlement will begin to be distributed to class members; and
  • The claiming website must be operational.
September 4, 2009 Revised Opt-out deadline (original date was May 5, 2009).
  • Class members wishing to opt out of the suit must do so by this date;
  • Books and Inserts Google digitizes by this date will be eligible for a cash payment; and
  • Class members wishing to object to the Settlement or otherwise appear at the final Fairness Hearing must file notice of their objection or intention to appear by this date.
October 7, 2009 Revised Final Fairness Hearing (original date was June 11, 2009).

November 13, 2009 Amended settlement filed.

January 28, 2010 Deadline to file an objection to the Amended Settlement

February 4, 2010 Deadline to file notice of intent to appear at the Fairness Hearing.

February 18, 2010 Amended Settlement Fairness Hearing.

March 31, 2011 Cash Payment Deadline (extended from January 5, 2010)-- A claim for Cash Payment for a Book or Insert must be filed no later than this date.

April 5, 2011 Removal Request Deadline Requests to remove the Book or Insert from Google must be filed by this date. Any requests made after this date will be honored only if Google has not yet scanned the item (in which case, Google will not scan the item).

Effective Date Unknown at this time the date on which the rights and obligations of the Settlement Agreement become effective; the Court has entered final judgment, and the time for appeals has expired; 30 days after the District Court enters judgment. The Effective Date will not occur until all appeals have been resolved.

  5 years from the Effective Date - Rightsholders must register claims for Books or Inserts by the 5th anniversary of the Effective Date in order to receive an Inclusion Fee.

  5 years from the End of Reporting Period During which a Book Generated Revenue
  • A Rightsholder may claim his/her/its Books at any time, including after the deadline for receiving Cash Payments or Inclusion Fees;
  • Once a Rightsholder claims a Book, he/she/it will be eligible to receive Usage Fees on a going-forward basis;
  • • The Rightsholder also would be eligible to receive any revenues that had been generated by its Book but that had gone "unclaimed" until the Rightsholder registered. However, if the revenues are unclaimed after 5 years after the end of the reporting period during which the Registry receives such revenues, then the Registry will disburse the revenues pursuant to the Unclaimed Funds provisions of the Settlement.
  10 Years from Registry's Receipt of Subscription Revenues
  • At any time prior to 10 years from the date on which the Registry initially received Subscription Revenues, the Registry will distribute Inclusion Fees to Rightsholders of eligible Books and Inserts, if there is sufficient revenue to do so.
  • If not all Inclusion Fees for Books can be paid by the 10th anniversary of such date, the Registry will vote to determine whether to continue using the revenues from institutional Subscriptions to fund such Fees.
  • If, after such 10th anniversary, the Registry decides to continue funding the Book Inclusion Fees, 10% of revenues received from Subscriptions will be used to fund such Fees (compared to 25% of such revenues during the first 10 years).

Last Updated: 22 March 2011