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Authors, Publishers-Urged to File Online-Claims With Google

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MAIN NEWS HEADLINES
February 26 – March 5, 2009 Edition

Authors, Publishers
Urged to File Online
Claims With Google

DALLAS, TX/Authorlink News/02/26/09–The pending Google settlement for a class action law suit filed by the Authors Guild and Association of American Publishers, will likely affect every author and publisher who owns a U.S. copyright interest in books or inserts (such as book introductions). Thus rightsholders are now encouraged to file claims for their works online at http://www.googlebooksettlement.com in order to share in proceeds of the court settlement.

The suit has already received preliminary court approval with a final hearing in June 2009. Rightsholders, however, only have until May 5, 2009 to file their claims. The court-approved Notice, which summarizes the settlement, important terms, claims process, and key dates, is available at http://www.googlebooksettlement.com/notice.html

The highly-publicized $125 million pending Google settlement, brought in behalf of authors and publishers by The Authors Guild and the Association of American Publishers, has far-reaching implications, not only for books published prior to January 5, 2009, but for all subsequently published books. Partly as an unintended result of the lawsuit, Google has become a sort of de facto model for digital publishing rights. The newly-installed Book Rights Registry, initially funded by Google itself, becomes the centralized clearing house for all those rights.

It is critical that all authors and publishers register their works for the purposes of the settlement no later than the May deadline.

According to the Google website:

You own a “US copyright interest” if you own, or have an exclusive license in, a copyright protected by United States copyright law. For example, if you are an author, you own the copyright in your Book (unless you have completely assigned all of your copyright interests to another person or unless you wrote the Book as a “work for hire”). You also own a US copyright in a Book if you have the exclusive right to publish that Book in the United States or if you have the legal right to sue another for infringing your rights in the Book. Several persons may have US copyright interests in the same Book, such as co-authors, an author and a publisher, and heirs of an author. . .

If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a US copyright interest if (a) your Book was published in the United States, or (b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention, or (c) your country had copyright relations with the United States at the time of the Book’s publication. You should assume that you own a US copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States

If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a US copyright interest if (a) your Book was published in the United States, or (b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention, or (c) your country had copyright relations with the United States at the time of the Book’s publication. You should assume that you own a US copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States

All Class members should go to http://www.googlebooksettlement.com to access a searchable database of Books that are covered by this Settlement. This database also lists government works and public domain books that Google has digitized, which may contain Inserts. The list attempts to include all in-copyright Books published on or before January 5, 2009. There will, however, be some Books covered by the Settlement that are not on the list. Therefore, even if your Book is not on the list, so long as you own a US copyright interest in a Book published on or before January 5, 2009, you should consider yourself a Class member.

The lawsuit against Google was brought when Google announced that it had entered into agreements with several libraries to digitize Books and other writings in those libraries’ collections. Google has already digitized over seven million books, including millions of Books that are still in copyright in the United States. Google users can search Google’s “digital library” and view “snippets,” meaning several lines of text, from Books.

The Google Library Program is one way in which Google is digitizing Books (entire books, we might add) for its “Google Book Search” program (see http://books.google.com). The Google Partner Program (under which Google gets permission from publishers and authors to use their copyrighted works, see https://books.google.com/partner) also contributes works to Google Book Search. Although the Partner Program is not the subject of this Settlement, this Settlement might affect members of the Partner Program.

Presumably, all of these permissions will now flow through the Google-funded Book Rights Registry.

Authorlink Editor’s Notes:

Many in the industry say the Google settlement actually broadens-rather than limits–Google’s legal ability to scan and sell entire books. Furthermore, the settlement requires nearly every author to formally opt in or out of Google’s search programs through the Book Rights Registry, which ultimately will charge the rightsholder up to 20% of the 63% royalty they would to earn from Google.

Before the settlement, Google argued that it had every right to digitize entire books under the Fair Use Doctrine–to display snippets, and then sell the books to consumers. The Guild and AAP disagreed and filed suit. After millions of dollars in legal fees and many hours of negotiation to prevent Google from digitizing full books, the fact is, Google can now legally do that very thing under the settlement, in many cases deciding how much it will pay authors for doing so (because of the price-setting provisions in the settlement).

As part of the settlement, the Author’s Guild and the AAP are in charge of setting up and initially running the Registry, a sort of world police headquarters for authors’ digital rights–so far specifically related only to Google’s use of product. Furthermore, the Book Rights Registry becomes the “legal owner” of the digital data, whatever that means. Like it or not, every author (or author’s estate) whose book is searched and found on Google, must file paperwork and channel their applications through the official Book Rights Registry in order to opt in or out of the program. After all, who can afford not to be seen in the world’s largest search engine? If the author of an out-of-print book simply ignores the situation, or doesn’t get the settlement message by deadline day (May 5, 2009), he/she will be opted “in” to the program by default. And if the rightsholder doesn’t specify a book price, Google will decide for that person.

Under the settlement, and thanks to the Guild and AAP, authors will now be paid a small sum for books Google has already illegally scanned (generally about $60 per title). Without the lawsuit, the amount might have been zero. Going forward, authors will receive about 40-50% of the net revenues on electronic book sales (after Rights Registry fees). At first, this may seem like a lot, but in many cases, the compensation is far less than they might have received on a digital sale before the Google settlement became the industry model. See Authorlink mathematic examples.

It appears that Google has essentially paid off its detractors and won the full use it wanted in the first place. In addition to paying for its own enforcement overseer (the Rights Registry), Google is also paying a huge chunk in fees to the very lawyers hired by the Guild and AAP to sue Google for wrongdoing (this, according to a recent Independent Book Publishers Association article). The settlement looks like forced collectivization in favor of Google, where a hefty percentage of the profits go to administrative middlemen (and lawyers) rather than those who actually created the product. Google has succeeded in strong-arming authors and publishers alike into giving the company a license to digitize, price, and sell nearly every book on the planet, unless the rightsholder is brainless enough to opt out.

Some have begun asking: Where is the Federal Trade Commission? The FTC is charged with preventing unfair methods of competition in commerce, and over the years has gained an even greater authority to police anti competitive practices. No other entity anywhere near Google’s size, will have a hope in Hades of competing. Yet, the FTC hasn’t peeped.

Even in the face of the lawsuit and after shelling out $125 million in settlement expenses, Google denies any wrongdoing or liability, and rejects the claim that any member of the class is entitled to compensation for damages. Then just what are they buying with their millions?