Friday, February 25, 2011

Deadline for Claiming Cash Payment Under Google Book Settlement Has Been Extended

Posted by Victoria Strauss for Writer Beware

A couple of weeks ago, I reported that the parties involved in the Google Book Settlement had applied for an extension of the deadline for authors to file claims for cash payments for works scanned by Google without permission.

On Feb. 18, the Court approved the extension. Claims were due by March 31, 2011; they will now be due one year after the date on which a court order is issued approving the Settlement. In other words, the new deadline doesn't have a fixed date, and you'll need to keep your eye on Settlement developments. (Don't worry; I'll continue to report as necessary.)

A couple of other deadlines are unchanged: to remove your works from Google's Participating Libraries and Research Corpus databases, you must make a request on or before April 5, 2011. To remove your works from Google Books, you must make a request on or before March 9, 2012.

Questions you may have:

The Google Book Settlement--what's it all about? Several years ago, Google entered into agreements with a number of libraries to scan the books in their collections, creating a vast database  now called Google Books. The books were listed online, along with publishing info and, for books still in copyright, limited "snippets" of text (for public domain books, the entire text was available). Claiming the scanning was fair use, Google argued that it didn't need to seek copyright holders' permission. Authors disagreed, and in 2005, a group of publishers and the Authors Guild filed suit to stop the scanning.

In October 2008, the parties in the suit reached a settlement that didn't address the copyright question at issue, but did give Google the green light on digitization--and on monetization of its database--in return for payments to authors whose in-copyright works had been scanned without permission. As a result of challenges, including objections from the US Justice Dept, the Settlement was amended in November 2009. A Fairness Hearing was held in February 2010, at which the presiding judge, Denny Chin, had a chance to hear statements of challenge and support. A final decision on the Settlement is still pending.

I thought the Settlement was approved. Nope. The Settlement is still under consideration and is not final. There's no guarantee it will be approved, or if approved, that it will remain in its current form.

Who's covered by the Settlement? All holders of a US copyright interest whose books were published on or before January 5, 2009. The Settlement defines this as any books that were either registered with the US Copyright Office or published in the UK, Canada, or Australia as of that date. Books published after January 5 are not part of the Settlement.

I'm not a US author. Does the Settlement affect me? Possibly, if you hold a US copyright interest (a copyright protected by US law). If you're a German author who sold US rights, for instance, you may be affected.

What's the cash payment? The cash payment is money Google has agreed to pay for in-copyright works digitized without permission on or before May 5, 2009. (Note the wiggle room between the Settlement cutoff date and the digitization date, allowing Google plenty of time to digitize books published by the cutoff date--just one of the many concessions by the Authors Guild that granted Google privileges far beyond those it originally claimed when it began scanning.) The payment for books is $60.

I'm covered by the Settlement. What do I have to do to get my cash payment? You need to register with the Google Book Settlement website, and claim your books or inserts by filling out the Claim form. You must do this by the new deadline: one year following the court order approving the Settlement. (Assuming that there is one.)

What's the Claim form? It's an online process available at the Book Settlement website. You can start here. You can also download a paper form if you don't want to make your claim electronically.

I opted out of the Settlement. Does the new deadline affect me? No. If you opted out of the Settlement, you're done. You don't need to worry about any more deadlines. (I opted out by the first deadline. Here's why.)

I want to opt out. How do I do that? You can't. The final deadline for opting out was January 28, 2010. If the Settlement isn't approved, or if it has to be amended again, you may get another chance--but for now, opting out is no longer an option. (Nor is opting back in, if you opted out and have changed your mind.)

Damn. I didn't opt out, and I don't want my works to be included in Google's databases. Is there anything I can do? Yes. You can direct Google to remove or exclude your works by filling out the Claim form. To remove your works from Google Books, you must fill out the Claim form on or before March 9, 2012. To remove your works from the databases of participating libraries and from the Research Corpus, you must fill out the Claim form on or before April 5, 2011.

Be aware that if you direct Google to remove your works, you may not be able to reconsider and get them back in again.

If the Settlement isn't approved yet, why do I need to do anything? It's entirely possible that the Court may instruct the parties to amend the Settlement again, in which case all the deadlines will change (again). Or the Settlement may be struck down, in which case there will be no deadlines. As of now, though, nothing can be assumed--which means that even though the Settlement hasn't been approved, you need to proceed as if it had been, including complying with deadlines.

What about Google's new eBookstore? How's that related to the Settlement and to Google Books? Google Books is the giant digital book database that Google created in part by unauthorized scanning, and also by negotiating permissions with publishers and authors.

Google's eBookstore, rolled out with great fanfare at the end of 2010, is a separate commercial enterprise. It's where Google sells digital versions of that portion of the Google Books database it currently has the right to sell--including public domain works, works where permission has been granted by the author, and works where permission has been granted by the publisher.

The books covered by the Settlement are not currently being sold in the eBookstore. Google doesn't yet have the right to do that. But if the Settlement is approved, they will be.

Help! Google is still illegally scanning! My book was just published, and it's already on Google Books and in the Google eBookstore! Google has admitted liability for scanned books only through January 5, 2009 (and the Settlement covers only books published on or before that date). Books published after January 5, 2009 appear on Google Books or in the Google eBookstore by permission--either the author's (if the book is self-published) or the publisher's. In other words, if you discover your recently-published book on Google, your publisher put it there. (Hopefully your publisher holds your electronic rights--if not, you really do have a problem.)

The legalese is making my head spin. This whole Google thing is such a hassle, and anyway, I'm busy. What if I just ignore it? That's always an option. And believe me, I sympathize. I didn't ask Google to scan my books, and I also didn't ask the Authors Guild to include me by default in this enormous, complicated Settlement that is engineered largely to Google's benefit, and obliges me not just to fill out forms and pay attention to deadlines, but to compose these lengthy blog posts.

But like it or not, if you're a US copyright holder with works published on or before a certain date, and you haven't opted out, you are part of the Settlement--even though you never asked to be. If you ignore the Settlement, it won't go away--but what will go away are your options for controlling how a giant corporation to which you never granted any permissions makes use of your intellectual property.

There are a number of decisions you can make as to how, or whether, Google uses your works. The only wrong decision is to do nothing.

1 comment:

Frances Grimble said...

I would like to add a couple of comments to Victoria's excellent post.

The $60 only applies to each TITLE scanned. There is no separate payment for scanning the hardcover versus the paperback, nor any separate payments for scanning the same edition multiple times.

This is not free money. By accepting it, you are signing a contract with Google that allows them to publish your work in POD format, as an ebook, and as a part of huge collections of works Google plans to license to libraries. This publishing contract is irrevocable and applies to the rest of the copyright term. In theory you can opt out specific works, but in practice, the Settlement removes all penalties to Google, and all your legal recourse, if Google goes ahead and sells a specific work you asked to have removed.

The Settlement also entitles Google to sell advertising next to your work, and to use your work in other, unspecified ways (which probably include improving Gogole's natural-language software). Unlike Google publishing your book, these uses may not compete with your sales to other publishers, the sales of books those publishers have already published, or your self-publishing efforts. On the other hand, the Settlement enables Google to profit from all these uses without paying you.

You can tell I dislike the Settlement. But again, it is a 300+ page, ongoing publishing contract. It should be taken as seriously as any other publishing contract, perhaps more so, as it is nonnegotiable and the rights Google claims will never revert to you. (The Settlement does allow you to publish in other ways simultaneously with Google; the question is, how well can you compete in the marketplace with Google.) You should have it reviewed by your lawyer or your agent, just like any other publishing contract, before filing a claim.

I mean, really, if you want only $60 per title for your older books, you can easily get that just by whipping up your own POD and/or e-book.