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Google Settles Authors Guild Litigation - Updated 2Xs
Tuesday, October 28 2008 @ 01:31 PM EDT

Google has reached a settlement in the litigation over its Google Books feature. The settlement is complex, but on a quick look, it seems a bit like radio paying into a copyright clearinghouse to be able to play music. It has agreed to sell books and then pay 70% of revenues to authors via a "Books Rights Registry" being established; and Google also will pay the Registry 70% of net advertising revenues.

It's a good arrangement for Google and for the authors. For fair use, I'd call it a loss. Nevertheless, Google Books is still awesome. It hasn't been officially approved yet by the court, but it's reasonable to expect it will be. The parties will each call it a win, of course. Google:

Today we're delighted to announce that we've settled that lawsuit and will be working closely with these industry partners to bring even more of the world's books online. Together we'll accomplish far more than any of us could have individually, to the enduring benefit of authors, publishers, researchers and readers alike.
You can read the settlement in full. Here's the proposed Order [PDF], which one can opt out of, as it explains, or object to if you are in the settlement class. Here's the money part [PDF], who gets what. Google can continue Book Search, but books commercially available are in a "No Display" category. In addition, any author can opt out totally. We will have access to more books online now, according to Google's explanation.

If you look on page 24 of the Settlement Agreement [PDF] (the one without the attachments), you'll find this:
(a) Google Book Search. Google is authorized to, in the United States, sell subscriptions to the Institutional Subscription Database, sell individual Books, all as further described in this Settlement Agreement. Google shall pay to the Registry, for the benefits of Rightsholders, seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Settlement Agreement, less ten percent (10%), for Google's operating costs, deducted from such revenues prior to such calculation ( i.e., sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Settlement Agreement. The Registry will distribute the revenues to Rightsholders pursuant to the provisions of the Plan of Allocation.

(b) Cash Payment. Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the Opt-Out Deadline. Such forty-five million United States dollars (U.S. $45 million) will be distributed from the Settlement Fund in the form of Cash Payments of at least sixty United States dollars (U.S. $60) per Principal Work, fifteen United States dollars (U.S. $15) per Entire Insert, and five United States dollars (U.S. $5) per Partial Insert in accordance with the Plan of Allocation. To the extent that funds greater than forty-five million United States dollars (U.S. $45 million) are required in order to pay every such Settlement Class member his, her or its Cash Payment, Google shall make an additional payment to enable such Cash Payments to be made to the Rightsholders from the Settlement Fund. To the extent funds remain from the forty-five million United States dollars (U.S. $45 million) after all Cash Payments are made, such excess will be distributed pursuant to the Plan of Allocation.

Google will also pay the expense of setting up the whole system and will pay the plaintiffs' attorney fees and costs. That's the part the Authors Guild and the other plaintiffs will view as their win. So what does Google get? It can continue Book Search and expand it. You can read about that beginning on page 25.

I confess I'm disappointed that this isn't going to trial on the fair use question, but the copyright forces have the law tilted mostly all their way, and Google is in business, not in the change the world category, at least not when it conflicts with business needs. And who knows what the final outcome would have been from a trial? At least this is workable and protects the project. From that standpoint, it's a good settlement for the parties, and there will be a greatly enhanced ease of use for the public finding books to read online, sort of like the O'Reilly books you can access and read if you join up. Just talking authors and publishers into that was probably hard, and I'm glad about that. As usual, the public is the last entity considered. But if you care about that, you'd probably have to get your legislators to alter copyright law's provisions a bit. This is a settlement that affects only the US. If you live elsewhere, you won't see any change at all.

Update: Here's an article about the law firm representing the Authors Guild, Boni & Zack, which apparently will be cleaning up to the tune of $30 million or so, give or take a million or so here or there. They honestly play this as a win for the authors, not the public:

The law firm contended that the agreement, by providing new revenue for authors and publishers and a framework for Google to make their works available, will help stimulate sales.

Many of the books covered by the settlement are out of print and not being sold, Boni said. The settlement announced today provides a new opportunity for authors and publishers to earn revenue from that work.

"This historic agreement will breathe new commercial life into out-of-print books and provide other significant benefits to authors," said Joanne Zack, the other name partner of the firm.

The firm said that, if approved, the agreement would provide more access to out-of-print books, additional ways to buy copyrighted books, institutional subscriptions to millions of books online, as well as compensation to authors and publishers.

So we get to pay for out of print books, meaning books no one wants to buy currently. I see how that is an advantage to the authors, if it works out, which I doubt, but how is that a benefit to the public? Correct. It's not. Well, it will be more convenient to find out of print books, which can sometimes be an advantage if you are looking for something in particular. The bad part, in my view, is anyone else who wishes to present excerpts -- and Google's were very, very limited -- are now confronted with a settlement that presumably will encourage authors to go after others, who won't have the kind of deep pockets that Google enjoys. What, exactly, happens to libraries if you have to pay to read? I know there are still libraries in meat space, but in time, they'll just be backup, in my view. Online will win with books as it is already with newspapers. And what will the arrangement be for people who don't have any money to pay for information?

As for Google, everyone and his dog will sue them now. Of course, they already are.

Update 2: Here's a piece of good news -- regarding libraries, from ars technica:

What it does cover is what Google's Chief Legal Counsel, David Drummond, calls "the vast majority of books in existence": those that are in copyright, but out-of-print.

For those books, the agreement will see libraries in the US get free and unfettered access to the entire contents of the book.

And here's a video of a lecture on fair use and copyright by Andrew McLaughlin, Head of Global Public Policy and Government Affairs for Google Inc. and an Emeritus Fellow at the Berkman Center for Internet & Society.


Google Settles Authors Guild Litigation - Updated 2Xs | 37 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections ?
Authored by: The_Pirate on Tuesday, October 28 2008 @ 02:03 PM EDT
...If any...

[ Reply to This | # ]

Off topic here, please
Authored by: The_Pirate on Tuesday, October 28 2008 @ 02:05 PM EDT
:) That was four in a row... Uiii!

[ Reply to This | # ]

Google Settles Authors Guild Litigation
Authored by: eggplant37 on Tuesday, October 28 2008 @ 02:10 PM EDT
Well, from what it sounds like to me is that the right palms finally got enough
lubrication to allow a twisted version of what should have happened to happen.
Let me tell you what I mean.

Those screaming the song about how awful it is that their works are out in the
public in electronic format are getting money -- more money for something that
in my own opinion should be a right. I can drive 4 or 5 miles from here to the
library, check out a copy of the book, read it 3 or 4 times, then return it at
the end of my check out or extend that checkout until I'm done.

Why can't it be that simple with electronic versions of the same documents? All
I want to do is use the electronic material just like I was checking it out. I
take my copy, I use it until I'm done, I erase my copy.

What's stopping someone from coming up with this model of operation where
copyrighted materials are concerned, a model that is so simple, I could have
asked my kid to design it?

[ Reply to This | # ]

Google Settles Authors Guild Litigation
Authored by: Anonymous on Tuesday, October 28 2008 @ 08:44 PM EDT
If this is a typical "rights organization" scheme "small"
authors will get swindled. But how is this arrangement going to be enforced on
non-parties? Most writers are not members of the "Authors Guild",
though they would have you believe otherwise.

[ Reply to This | # ]

Sort of like DRM lock-in?
Authored by: Eric E Johnson on Tuesday, October 28 2008 @ 09:58 PM EDT
There's a really good business reason for Google doing this kind of thing. They
just dramatically raised the barrier to entry for anyone else trying to do the
same thing.

Meaning Google now probably has a lock on the profits they might garner from
this, and the publishers will be stuck with Google as the sole source for any
benefits they might get from this arrangement. They'll not likely find a better

This seems kind of like how the Apple iTunes store has turned into an enormous
money maker for Apple, and not as much for the music companies. Instead the
music companies have found that they don't have the power to negotiate better

[ Reply to This | # ]

Authored by: bjnord on Wednesday, October 29 2008 @ 07:13 AM EDT
What, exactly, happens to libraries if you have to pay to read? I know there are still libraries in meat space, but in time, they'll just be backup, in my view.

This article at ars technica says "the agreement will see libraries in the US get free and unfettered access to the entire contents of the book." If true, this seems like an expansion, not a contraction, of the materials a library can offer for free.

[ Reply to This | # ]

  • Libraries - Authored by: PJ on Wednesday, October 29 2008 @ 01:07 PM EDT
I'd imagine a lot of authors will sue Google
Authored by: Anonymous on Wednesday, October 29 2008 @ 09:20 AM EDT
Saying "Who are these 'Authors' Guild' jokers, and on what basis do they
claim to have represented me and settled my claims?"

And fair play to them, since the way this works for the MPAA and RIAA is that
all the revenue goes into the AA, and very little of it ever seems to trickle
down to the ostensible members.

[ Reply to This | # ]

Out of print books
Authored by: Anonymous on Wednesday, October 29 2008 @ 11:56 AM EDT
"So we get to pay for out of print books, meaning books no one wants to buy

Actually, that is wrong. Many out of print books are those that the publisher
does not want to SELL currently, probably because they don't believe there is
enough demand to cover the expense of another reprint. Being able to buy them
again would be an improvement.

I have several out of print books on my wish list. But I cannot even find used
copies. My wife did find one of them a few years ago and bought it as a birthday
present. But that didn't work out like she hoped. When I first saw it I was
convinced it was a forgery, and she was not too happy with my reaction. It took
several weeks to find out that it was genuine, but by then it was too late to
deal with the fallout.

[ Reply to This | # ]

Google Settles Authors Guild Litigation - Updated 2Xs
Authored by: Anonymous on Wednesday, October 29 2008 @ 07:24 PM EDT
I'm going to take the conservative view of this and say it's a win-win. The
reality is that Google is making a profit off making available text they don't
own the copyright on. In my opinion that's wrong and not in the spirit of fair

Personally I don't believe the legal interpretation of fair-use covers
commercial access, fair-use allows use of small portions for critique or
learning even in for profit scenarios but the wholesale availability with
advertising revenue going solely to Google just doesn't seem to fit with the
idea of fair use to me. Yes the people accessing the data fall under fair use
but Google's advertising revenue off the access they provide doesn't seem to
follow the idea. If google didn't make money off the process I would be more in
their court but I can't buy the idea that they can make money offering
copyrighted works up for use by others without sharing some of that revenue with
the owners.

This is really a win-win because now Google can sell out of print texts,
hopefully in a non-drm encumbered format so that the issue of not being able to
purchase out of print publications may go away permanently. This has been one of
the big complaints about the length of copyright is a lot of these publications
become uneconomical to print again and so fall out of the system and are lost.
If Google scans and archives them and makes them available for sale in a digital
format then the issue of these publications being lost may go away permanently.
The writers get paid, Google still makes money and in fact could become a huge
book seller of out of print texts.

[ Reply to This | # ]

Authors Guild?
Authored by: TheOldBear on Thursday, October 30 2008 @ 09:17 AM EDT
At least one computer savvy author Jerry Pournelle is puzzled about the 'settlement'.

As if I didn't have enough to do, I have a draft of an as yet not accepted by courts of a settlement between the Author's Guild acting on behalf of itself and its lawyers but purporting to be on my behalf. That led me to Google Books, where entering my name showed just about everything I ever wrote along with a button that says "Add to my library." I haven't yet figured out what "add to my library" means: does this mean a free download?


And on that one I have managed to dig in and find out what is happening: Google certainly has a number of my books -- not all of them -- available to be added to "My Library". Once they are in My Library I can open the book and read about 3/4 of the book. There are many complete chapters, but arbitrary chunks of the text are missing. Sometimes it's whole chapters, but in Burning Tower, for instance (which is I think the best love story Niven and I have written) you can read the opening, good parts of the book, but as the final chapter opens it jumps from there to the middle of the notes.

On the other hand, there are links to where you can buy them. Since I have posted chunks of my books myself I could be persuaded that this is teaser material and may increase sales. On the other hand, the selection is clearly random, and there are lots of spoilers.

I don't know what to make of this.

The source for the quote is in the The View from Chaos Manor for Wednesday, October 29, 2008

[ Reply to This | # ]

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