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23/03/11

The court has rejected the settlement in its current form. See here.

Google Books checklist

GOOGLE has scanned over 10 million books and put them, or parts of them, online - without permission. They were sued by authors and publishers. The result is a proposed "settlement agreement. It is apparent, talking with journalists, that a checklist to guide you through the implications is needed. So here it is.

This checklist sets out the settlement as proposed in January 2010. A "fairness hearing" in the Southern District Court of New York on 18 February 2010 may accept it, or lead to further revision. There may be legal challenges to it after that. This checklist describes it as if it were finalised, purely because that allows plainer language.

1Have you ever had words published in a book - a whole book, or a chapter, or a foreword, etc? Or are you the main "author" of a book of photographs or illustrations?

If the answer is "no", stop: the settlement does not affect you. If yes, find or make a list of those books.

Note: The amended proposal excludes all illustrations and photographs - unless the illustrator or photographer is the main author of the book. Other illustrations in children’s books are now excluded too.

2Was that book, or were any of those books, published before 5 January 2009?

If none were, you should check whether any of your books are online - see below - but you can stop as far as the Settlement goes.

It appears that if Google has scanned and put online any books published after that date, a separate lawsuit is required to get compensation.

3Were any of those books published in the UK, Australia or Canada? Or were they published in the US and registered with the Register of Copyrights? To check whether a book is thus registered, visit http://cocatalog.loc.gov and use the search.

If none of your books meet the condition [formally "published in UK, Australia or Candada or (published in US and registered)"] you can stop as far as the Settlement goes.

For the avoidance of doubt, if a book was published in the UK, Australia or Canada it does not matter whether it was registered. Books published only in countries other than the US, UK, Australia and Canada are not included in the Settlement.

4For each remaining book, check: did you "assign" rights? That is, did you sign over to a publisher or packager "all rights" in your work? If you did, cross that one off your list. Only the person or company to which you "assigned" rights can collect any money from Google. If there are no books left on the list, stop.

This is one reason why it would have been better to have found a publisher who wanted only a "licence" to publish your work.

5Have you "opted out" of the settlement? The deadline is/was 28 January 2010 and the place to do it is/was www.googlebooksettlement.com.

Everyone who has not yet been told to stop and has not "opted out" is assumed by US law to part of - "a party to" - the settlement. They still have the entirely separate choice of "withdrawing" their books so they are not displayed online.

If you have "opted out", Google cannot legally copy your books or make them available. If you have the time and money, and if Google has copied your books, you could sue it.

The NUJ has not called on members to "opt out" - it’s up to you. The NUJ is looking at ways to secure fairer terms for authors who remain parties to the settlement.

If you have "opted out", you can stop reading now.

6Everyone who remains a party to the settlement is entitled to $60 compensation for unauthorised copying of a full book in which they retain rights, and $5 to $15 for a chapter or a foreword, etc - an "insert" in the jargon of the settlement. (This applies to books scanned before 5 May 2009. The settlement does not specify what is payable for books being scanned now.)

The deadline to claim directly will be one year after the Settlement is approved by the Court and the place to do it is www.googlebooksettlement.com.

Unless you have a dollar bank account, there is a risk that bank charges will eat heavily into that amount. The Authors’ Licensing and Collecting Society is looking at ways to help its members claim efficiently. If you’re still reading, you should definitely sign up to get other cash due to you via ALCS: go to www.alcs.co.uk.

7You then have a choice for each book in which you hold rights, as mentioned above. You can "withdraw" each - which means that Google does not have permission to make its contents available online (except, perhaps, for very short extracts).

The deadline to "withdraw" a book is 9 March 2012 and the place to do it is www.googlebooksettlement.com. The deadline to remove a book from the Library programme is 5 April 2011

8If you do not withdraw a book, then you and the publisher are between you eligible to 63 per cent of revenues Google receives in future from making it available through the Google Books service http://books.google.com. These payments will be distributed by a new organisation called the Book Rights Registry.

To collect this, you need to create an account with the Book Rights Registry. The place to do it is https://books.google.com/booksrightsholders/r/new_claimant_info.

9Those who create an account with the Book Rights Registry as above should then be shown books which Google has scanned.

It is always wise to double-check. You could do worse then go to http://books.google.com and search for your name, and for unique phrases that appear in your book and no-one else’s. You will find books that cite you as well as those you authored.

Note that for each book you find you may see two-line snippets; selected pages; or the whole book (probably if your publisher has made an arrangement with Google, with or without asking you). Note also that users in other countries may see more than you do: if you see only snippets that does not guarantee that users in the US are not seeing more.

Important: One reason why you may want to consider withdrawing each of your books is concern about defamation - libel. The Freelance has informally checked with a solicitor who handles high-profile libel cases, who confirms that as legal precedent stands in the UK, Google making a book, or a phrase from a book available online to viewers in the UK could re-open the possibility of libel prosecution - see below for details.

Issues with the Settlement

This isn’t going to stop with books. Google owns YouTube, currently the premier service for distributing videos.

As an example of why creators are concerned: for reasons too absurd to explain, the song Never Gonna Give You Up performed by Rick Astley became the most-viewed video on YouTube in 2008. Pete Waterman, who has a songwriter’s share of the work, estimates that "must have been played more than 100 million times on YouTube". His share of revenue as declared by Google was £11.

And:

  • We understand that Google is scanning newspapers and magazines, but not itself making them available as yet.
  • Google is a partner in a scheme to install "print-on-demand" machines in bookshops. These will initially produce only out-of-copyright works.
  • A "Google Editions" service is expected later this year to compete with "e-book readers", such as Amazon’s Kindle, by allowing reading books on essentially any (other) device, including the iPhone and successors.
  • There has been talk of Google building a "micropayment" system for publishers to use to charge a few pence or less for viewing pages or articles. At a meeting between Google and the European Federation of Journalists in January the search engine was keen to stress that this it has made no official announcement of such a service.

Issues that European journalists’ organisations, including the NUJ, include:

  • Transparency of accounting: Google has apparently assured the Registry it will get full logs of access to books under the Settlement. The Settlement provides only for "Data sufficient to enable the Registry to calculate... Usage Fees" and a restricted audit.
  • Transparency of pricing: The Settlement envisages pay-per-view access to books, using computer algorithms to determine prices where the author or other rightsholder has not specified otherwise. The amended Settlement does specify that these should "find the optimal price for each such Book to maximise revenues for the Rightsholder..." But Google is (for good reason to date) secretive about its algorithms.
  • Distribution: The proposed Registry will not pay directly to authors: it will, as the Freelance understands it, leave this to publishers, examining their contracts with each author. This could encourage publishers to force "work for hire" contracts on authors, or to extract licences for all uses in media yet to be discovered and universes yet to be invented.
  • Moral rights: There is concern about the contexts in which work may appear, contrary to the honour and reputation of the author (that is, their moral right of integrity). As an example: journalistic codes of ethics specify that journalists shall not endorse products or companies. Could a corporation present extracts from a book written by a journalist as if it were an endorsement? Then there are the more obviously objectionable websites... The problem is that the Settlement is drawn up under US law, which recognises no moral rights at all in books.
  • Liability and libel: NUJ members have recently raised concern that Google making books available may leave them open to lawsuits. Under the UK's notoriously claimant-friendly libel laws, anyone anywhere in the world can sue here if only a few people in the country see, or can see, the alleged defamation: but they have to do so within a year of it being made available. Alastair Brett, giving evidence as Times Newspapers' lawyer to the Parliamentary Select Committee on European Union in 2004, said:
    I have had recently the case of Gregory Luchansky, one of the Russian oligarchs, suing The Times in two actions, one over the hard copy and then a year and a bit later over the electronic version because I am afraid to say our department was not as perhaps as efficient as we should have been in hauling it off the website... every time somebody accesses a computer it is a new publication giving rise to new cause of action, it means there is no effective limitation period for electronic publications...
    So it seems that Google could resurrect an expired grievance against something you wrote. In UK law printers, distributors and newsagents are as liable for libel as are authors and publishers, so the question of Google's liability is an interesting one. (Note that there is very little reporting of Luchansky's case, except the above which is protected as proceedings of Parliament.)

Issues primarily raised by others include:

  • Monopoly: The potential of the Settlement to give Google an effective monopoly or dominant position open to abuse. This was the major concern of the US Department of Justice and it is not entirely clear whether the amended Settlement addresses it. Specifically, the first draft Settlement gave Google an effective monopoly in scans of orphan works. The amended Settlement provides that the "fiduciary" entrusted with the interests of rightsholders in orphaned works may licence to third parties.
  • Advertising monopoly: Separately, there is concern about Google’s dominant position in online advertising. The Microsoft corporation is active in promoting this concern.
  • Preference to US users: The EU Commission expresses concern that the Settlement would give US readers and researchers access to works that others could not get: this is in the context of its push for a European digital online library.
  • Completeness: Google does not guarantee to make available any work that it is permitted to make available. If Google aims to become, through partnerships with libraries, the online library, does this mean that works may be excluded for political or commercial reasons, or because of commercial risk under UK defamation law?

These are some of the reasons why a legal challenge to the Settlement cannot be ruled out, even if the New York court approves it. If it went to the US Supreme Court, this could easily take a decade.

Last modified: 9 Mar 2011; first posted 27 Jan 2010 - © 2009 contributors
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