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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.

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