Friday, January 22, 2010

Another Google Book Search Settlement Deadline

Posted by Victoria Strauss for Writer Beware

Writers: Another Google Book Settlement deadline is fast approaching. Per the amended Settlement agreement, January 28, 2010 is the last date you can opt out of the Settlement, or opt back in if you previously opted out and have since changed your mind.

(Note: The Settlement covers only US copyright holders published on or before January 5, 2009, and only books or inserts published in the US, Canada, UK, and Australia.)

Here's the deal:

- If you want to opt out of the amended Settlement, you can fill out this online form. Opting out means you will not be included in the Settlement and will receive none of its benefits (including cash payment for any books or inserts of yours that Google may have digitized without permission), but will retain your right to sue Google for copyright infringement and other claims related to the Settlement. Google is currently "voluntarily" promising to remove the works of opt-outers from its database, though there's nothing in the Settlement language to hold it to that.

- If you opted out before the Settlement was amended, and have changed your mind, you can now opt back in. Again, there's an online form you can fill out. Opting back in means your books and inserts will be included in the Settlement, that you'll receive a small cash payment for books and inserts that Google digitized without permission, and that you'll receive a portion of the revenue Google realizes from the commercial uses it makes of your work. You'll also be able to control how and whether your books and inserts are displayed, and how Google will be able to offer them for sale (with some limitations). However, you give up your right to sue Google for any claims related to the Settlement.

As an alternative to the online claim forms, you can contact the Settlement Administrator directly:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
UNITED STATES OF AMERICA
BookSettlement@RustConsulting.com

- What if you do nothing? If you've already opted out or in, and are happy with your decision, there's nothing you need to do. If you haven't yet done anything, and take no action by January 28, you will automatically be part of the Settlement. US copyright holders are automatically opted in to the Settlement, even if they do nothing (a major objection among Settlement opponents, since this reverses a long-standing principle of copyright law).

- Whatever decision you make, regard it as permanent. It's possible that, at the Fairness Hearing on February 18, the Settlement will be amended again, or even thrown out (though I think that's unlikely). If so, you may have to decide to opt in or out again. However, if the Settlement is approved, you will not get the chance to change your mind. Be prepared, therefore, to live with the decision you make now.

- What next? If you opt out, you're done. If you opt in, however, you must establish how and whether Google will be able to display and sell your books and inserts. To do this, you must "claim" your works. Once again, there's an online form, but there's also the option of a simplified method, which involves emailing your bibliography to the Settlement administrator.

Opt-inners can claim their works at any time. However, if you want to direct Google to remove or exclude your works from its database, you must claim your works on or before April 5, 2011. (For why you might want to do this, see the next-to-last paragraph.) If you ask Google to remove or exclude your works, you may be able to change your mind later--but there are no guarantees. And if you want to receive a cash payment for works that Google digitized without permission, you must claim your works on or before March 31, 2011.

For writers who support the Settlement, it's a simple matter of opting in and claiming your writings. For writers who oppose it and don't want Google to display or sell their writings, things are more complicated. Is it better to opt in, giving up your right to sue but asserting control over your works? Or is it better to opt out and preserve your right to sue, with no guarantee that Google won't someday decide to change its "voluntary" policy of removing opt-outers' works from its database? If you're a pragmatist, the former may make most sense, since it assures you of control (at least, as much as is possible in a hugely open-ended Settlement whose long-term implications are not even remotely clear). For those who stand on principle, however--whatever that principle may be--opting out, even with the uncertainties involved, may be the best choice.

I opted out of the original Settlement, and I will remain opted out of the amended Settlement. Although the amendments do improve the Settlement's terms, and although I am sympathetic to the idea of a digital world library, for me the principle of copyright trumps all other considerations. By assuming permission, rather than seeking it, Google is turning copyright law on its head, and setting dangerous precedents for the future. I don't deny that copyright law could use some changes--but this should be accomplished through legislation, not as the default result of a lawsuit.

Links for further reading:

- Google's Settlement FAQ

- The Laboratorium is the blog of law professor James Grimmelman. He is an informed, relatively neutral observer of the Settlement, and (in my opinion) has provided some of the most intelligent and reasoned commentary on it. His article, "How to Fix the Google Book Search Settlement," precedes the amendments, but provides a good overview of the history and issues. "The Google Settlement: Why It Matters," written post-amendment, discusses why the changes don't render the Settlement less problematic.

- The Public Index provides general information and links to many documents.

- Transcript of a SFWA panel discussion on the Settlement.

7 comments:

Mike Brendan said...

What would you recommend for those writers still trying to get their work published, but haven't yet?

Victoria Strauss said...

Mike, as I noted in my post, the Settlement covers only books published on or before January 5, 2009. If you haven't yet published anything, the Settlement does not apply to you (except of course for the implications going forward).

Frances Grimble said...

Mike,

The Settlement only applies to works published before January 2009. If none of yours have been published yet, you do not need to opt into or out of it. What you need to worry about is legal precedents set for massive copyright violation. Google is still continuously scanning books and magazines.

If Google goes ahead and publishes the works of those who have opted entirely out of the Settlement, there will almost certainly be another class action suit about it. A few wealthy copyright holders might choose to sue Google individually, but it is highly unlikely that the average copyright holder would need to mount an individual suit.

There is more information about the Settlement at the following links. It is up-to-date, applying to the current, 2.0 version of the Settlement. Much of the information floating around the net is about the previous, 1.0 version. The Settlement did not change much from version 1.0 to 2.0, aside from excluding most foreign countries. But it did change some. Furthermore, some organizations have changed their positions regarding the Settlement.

There will almost certainly be more versions, or (best outcome of all) the Settlement may be thrown out entirely. But obviously, no one can be certain of anything--especially all us obscure copyright holders who are in no position to negotiate and not informed of all the behind-the-scenes discussions.

The last link is for a petition regarding the Settlement that Ursula Le Guin plans to send the court. Writers can add their signatures till January 25.

http://www.nwubook.org/NWU-GBS2-FAQ.html

http://www.openbookalliance.org/

http://www.gillianspraggs.com/gbs/google_settlement.html

and

http://blog.bookviewcafe.com/2010/01/17/le-guin-petition-letter-to-the-judge-of-the-google-book-settlement/












There is further

Victoria Strauss said...

I don't think it's at all certain that there will be more versions of the Settlement.

What is certain, I think, is that if the Settlement does go forward, there will be lawsuits from those who opted out--not because Google will change its mind about removing their works from the database, but because the copyright issue that was at the heart of the original lawsuit, and has gotten somewhat lost in the current discussion, needs to be presented to the courts. IMO, anyway.

Lynn from For Love or Funny said...

Hi, I just found you and I'm a new follower. Thanks for providing such valuable information to us writers!

Frances Grimble said...

Victoria,

I think there will be further versions of the Settlement for two reasons.

The first is, Version 2.0 has not addressed most of the issues put forth by the US Justice Department in their criticisms of Version 1.0. The JD is scheduled to deliver input on Version 2.0 on February 4.

The second reason is, vigorous legal opposition to the Settlement is being mounted by a number of parties including the Open Book Alliance, a coalition that consists of Yahoo, Microsoft, Amazon, the NWU, the SFWA, the ASJA, and other parties.

The good thing about Microsoft, Amazon, and Yahoo is they have lots of cash to pay lawyers to fight Google. The bad thing is, what some (I assume not all) of the parties in the Open Book Alliance want, is to turn the Google rights grab into an open rights grab, where THEY all get to publish all these works without explicit permission. The stated reasons are either economic or altrustic depending on the party who wants to do it. See their website:

www.openbookalliance.org

The Google Settlement cannot grant them those rights, so they want to scotch it and make yet another try at putting an "Orphan Works" act through Congress.

There have been at least two failed tries at passing "Orphan Works" acts over the last few years. The proposed Acts were heavily backed by Google, among other parties. I remember the last proposed Act more or less, though I forget the text of the previous one. The last one failed due to heavy opposition from photographers, illustrators, textile designers, and other visual artists. Commercial art is often published without a signature or other direct attribution. The text of the Act defined "orphan work" very broadly; basically everything unattributed was defined as "orphan" and fair game for anyone and everyone to publish and profit from. This can happen to text too, though, if it is taken out of context. In any case, the Act did not claim to focus only on illustrations; it included text.

Some of the statements on the Open Book Alliance's site make it clear that they are trying to pave the way for another try at passing an "Orphan Works" act. I believe that older copyright terms should be respected, and just because an author is (in some cases) dead, does not give anyone the right to seize control of all their works from their heirs. However, the last proposed Act was so incredibly vague that an enormous number of quite recent and even in-print works by live copyright holders would have been included. I, and many others, wrote letters to members of Congress about it.

I will be absolutely delighted if Microsoft, Yahoo, et al manage to scotch the Google Settlement. But the next thing I'll do is start keeping an eye out for the "Orphan Works" Act they are likely to propose, and what needs to be done about THAT. I sincerely hope the NWU, the SFWA, and the ASJA fully understand the dangers of certain parts of the coalition's agenda, and are willing to stand up for the rights of authors against their own current allies, as well as Google.

And we should not forget our other allies, such as visual artists.

Mike Brendan said...

Victoria & Francis,

Thanks ever so much for the info and for the advice going forward.