Wednesday, January 13, 2010

From the Authors Guild: Simplified Method for Claiming Works for Google Book Search Settlement

Posted by Victoria Strauss for Writer Beware

The following message was sent to Authors Guild members this week. If you've chosen not to opt out of the Settlement and haven't yet claimed your works on the Settlement website, this should make things a bit easier.

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Claiming a lengthy list of your books, short stories, essays, poems and articles for Google settlement benefits just got much easier. You can now start the process by simply submitting your bibliography to the claims administrator. You need only e-mail -- or send by regular mail -- a list of your books and shorter literary works (poems, short stories, articles) that may appear in books covered by the settlement. When in doubt, we suggest you submit everything.

Although the author's name and the title of the work is enough to get the ball rolling, it's helpful to include this additional information you can find in or on your books: ISBN, publisher, place and year of publication.

E-mail your bibliography to BookSettlement@RustConsulting.com. Feel free to send it as an attachment or paste it into the body of the e-mail itself.

If you prefer to submit your bibliography by regular mail, send it to:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
USA

You may still file your claim through the regular claiming process, which our members with short lists of works have generally found easy to use. To do so, or to learn more about this simplified procedure, go to www.googlebooksettlement.com.

IMPORTANT NOTE: The Settlement Administrator will contact you to complete your claim, but it may be several months before that happens. You will be contacted before any of your works are displayed pursuant to the settlement, and you will have ample opportunity to instruct Google regarding which of your works you'd like displayed. (Remember that this is really about out-of-print books. None of your in-print books will be displayed under the settlement without your approval.)

8 comments:

Frances Grimble said...

I opted entirely out of the Settlement. (Which is very different from opting in, but opting in-print works out of "display" uses.) Anyone who wants to know why may read:

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

and

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

and

www.openbookalliance.org

The Settlement does apply to works in print because (a) it covers the entire remaining copyright term of the work and (b) if you opt it, it gives you no recourse against either Google or your publisher if a work you do not want "displayed" (sold or displayed entire for free) is "displayed" anyway. (Google has recently said they intend to pour the contents of the books into their main search engine, and sell ads next to them, but the Settlement does not provide any compensation to copyright holders for this use.)

If Google violates the terms of the Settlement, and you have opted in, your only recourse is to appeal to the arbitration board set up by the Settlement. In theory the Settlement has just been changed so that you can sue your publisher if it's their fault. But it also says you can sue your publisher only with their consent to be suited, and why should they consent?

Opt-ins have been set up as pretty much a one-way street. If you opt in, you may never be able to opt back out again. Almost certainly not, if this version of the Settlement (2.0) turns out to be the final one.

But, if you opt out of the Settlement entirely, you can opt back in later. There will likely be future versions of the Settlement, so you can opt out of the Settlement now, see what the versions look like, and opt back in if and when you want to.

Personally, I need to know exactly what's in a publishing contract before I sign it. The Settlement is a 300+ page publishing contract, written so obscurely that many lawyers say they don't fully understand it. Nonetheless, it is very much in the interests of every copyright holder to read this document in full and if at all possible, to consult their lawyer about it before making any decisions.

If you opted into version 1.0 and you now want to opt out, you have a chance to do it before the January 28 deadline. (That's the opt out deadline; the deadline for filing claims is much later. You don't have to do it now. Anyway, that's just the $60 per violated book/title payment, which is so trivial it's not worth worrying about.)

It is not clear that any more opt-out-after-opting-in opportunities will be presented. But again, you can always opt in after you opt out.

As for the mechanism of opting out of the Settlement--or opting into it but opting out specific works--my lawyer advised me to do it in writing, photocopy the letter, send the original by registered mail, and save the receipt and the photocopy. Otherwise, I would have no legal proof that I ever took this action. Google is not good about providing such proof (and their database is an ever-changing chaotic mess).

The National Writers Union is advising copyright holders to cc the opt-out letter to the court also. The NWU web page mentioned above lists all the proper addresses.

One important piece of information on the NWU site: It turns out that many bound magazines were also scanned. (I've seen some recent magazines as "full view" on Google Book Search already.) The loose definition of "binding" in the Settlement means magazines qualify as "books" under the Settlement, and any short works you've had published in magazines qualify as "inserts." So, you also have to consider every work you've ever had published in a magazine.

Victoria Strauss said...

But, if you opt out of the Settlement entirely, you can opt back in later. There will likely be future versions of the Settlement, so you can opt out of the Settlement now, see what the versions look like, and opt back in if and when you want to.

Frances, can you provide a citation for this statement about opting back in?

Michael Capobianco said...

After reading through the Amended Settlement again today, I have to correct a few things Frances Grimble said, although she's right on target in most of her points.

January 28 is the deadline for opting out. It's also the deadline for opting back in if you've opted out. After that, if you've opted out, you're out. If there's another version of the settlement down the road, there probably will be another chance to opt in, but that's a big gamble.

In fact, "opting in" is a misleading term, since if you don't opt out before January 28, you're in no matter what you do.

The amended settlement specifically excludes magazines bound together as books in Article I Section 1.104. Remember too that, by most readings, any short story that wasn't independently registered with the copyright office is not covered by the settlement. Of course, this doesn't mean that they weren't scanned, only that the settlement doesn't cover them and doesn't affect their status.

I can't emphasize enough my agreement that anyone who opts out should get confirmation in one form or another from Rust Consulting.

Frances Grimble said...

My source was advice from a lawyer. He says Google wants everyone to opt in, not out.

Whether you are ultimately opted in if you do nothing, depends on whether the Settlement is allowed to cover copyright holders who do nothing. All those owners of so-called orphan works, plus everyone who didn't hear about the Settlement in time to opt out (many people are just now hearing about it for the first time), plus people who did nothing and waited to see what happened.

There are certainly opponents making vigorous formal legal arguments that millions of copyright holders can't just be "opted in" without their consent. That's the core of the issue. I sincerely hope "opt out" does not stand as a legal precedent. If it does, copyright holders are likely to spend the rest of their lives chasing many parties in addition to Google who used their work without permission, then waited to see if they'd ever find out and then "opt out."

There are two upcoming workshops on the Settlement, with lawyers present and so on. Here's a link to information:

http://hasbrouck.org/blog/

Re my "magazine article/story/etc." comment, see the National Writer's Union FAQ:

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

Specifically, point 11.

Ursula Le Guin is spearheading a movement against the Settlement and collecting signatures from writers. See:

http://blog.bookviewcafe.com/2010/01/07/le-guin-on-the-google-settlement/comment-page-4/#comment-5866

Fran

Frances Grimble said...

Re "inserts" see:

http://copyright.columbia.edu/copyright/2009/12/17/google-books-dude-wherere-my-inserts/

Karen Packard Rhodes said...

We should not have to "opt out," and I hope this point will be raised to the court. These works are OURS, and Google should never have been allowed to put us in the position of having to "opt out" of having our copyrights violated.

Victoria Strauss said...

Whether you are ultimately opted in if you do nothing, depends on whether the Settlement is allowed to cover copyright holders who do nothing.

Being opted in automatically is the heart of the Settlement. It's an economic issue for Google--if they had to get rightsholders' permission, not only would their book database be substantially smaller (all those orphan works), it would cost them a fortune. A Settlement without the automatic opt-in provision would hardly be worth their while. I would be astonished if that were to change.

It seems pretty clear from what I've read in the current version of the Settlement that if you opt out, you're out for good, and if you stay in, or do nothing, you're in for good. It may be that the Settlement will change a great deal as a result of the Fairness Hearing, or even that it might be thrown out (though I doubt it)--but I think that writers would be well-advised to assume that whatever decision they make on January 28 is permanent. In other words, make the decision you're prepared to live with, and don't assume you'll be able to change your mind at a later date.

Victoria Strauss said...

An excellent article by Pamela Samuelson on the possible consequences of opting in to the Google Book Settlement.