Google Book Search Settlement

August 31, 2009
Resources

The Google Book Search Settlement

Reminder for Authors: September 4, 2009 Opt-Out Deadline Approaching

Do you have a U.S. copyright interest in a book or ‘insert’ published on or before January 5, 2009? Then the Google Book Search Settlement may affect you.

To determine if you are a member of the class covered by the Google Book Search settlement, review the official Google Settlement website.

If you are a member of the affected class, you have until SEPTEMBER 4, 2009 to elect to ‘opt-out’ of the Google Book Settlement. If you are a member of the class and do not take action to opt-out, your work will be subject to the terms of the settlement, which, as it turns out, will also enable you to require that Google not scan or destroy existing scans of your works. To opt-in to the settlement, you do not need to take any action.

As the deadline to opt-out of the settlement approaches, we want members of the University of Michigan community who may be affected by the settlement terms to be aware of their options and to consider the implications of either remaining in the class of authors and publishers OR electing to opt out. We do not know, of course, whether the court will approve the settlement proposed by the plaintiffs and Google.   The Fairness Hearing scheduled for October 7, 2009 will answer that question.

Note that the University of Michigan Press has chosen to remain in the settlement on behalf of its authors.

Some Background

The Google Library Project is in the news. The Project began in 2004 when Google announced its agreements with several libraries to digitize books in those libraries’ collections. The Project includes books in the public domain (that is, with no copyright) as well as books still subject to copyright. The University of Michigan Library is one of the many libraries that participate in the Google Library Project. Learn more about the Michigan Digitization Project.

In the fall of 2005, several major publishers, the Authors Guild, and some authors brought a class-action lawsuit against Google. The lawsuit asserted that Google infringed on their copyrights by digitizing their copyrighted works without permission. Google argued that the digitization of the books and display of a few lines was permitted under U.S. law under the doctrine of fair use. The parties have arrived at a settlement after more than two years of negotiations. 

The case is before the United States District Court for the Southern District of New York, which must approve the settlement for it to go into effect. A Final Fairness Hearing is scheduled for October 7, 2009. The court will determine whether to grant final approval of the settlement. The court may approve the settlement as written - or might reject the settlement (in which case the parties could resume litigation or renegotiate the terms of the settlement in effort to arrive at a settlement that the court would be willing to approve). It is difficult to predict the final outcome.

While the University of Michigan Library is a participant in the Google Library Project, it is not a party to the lawsuit. In providing this information, we explicitly do not intend to encourage or discourage class members in any particular direction. Rather this is presented an effort to make sure that our community is aware of the settlement and to encourage members of the class to consider the implications and make informed decisions.

The settlement agreement is very complex. You may wish to consult a lawyer to examine your own situation. This communication is informational and does not constitute legal advice. 

Some Resources

Unless you opt out, the Settlement will apply to you if you are a member of the Author Sub-Class or the Publisher Sub-Class, that is, you have a U.S. copyright interest in a ‘Book’ or ‘Insert’ published before January 5, 2009 (books published after that date are not included in the settlement). These terms are defined in the settlement agreement.

  • The Author Sub-Class includes authors, heirs, successors, and assigns as well as all other members of the class who are not publishing companies (or their successors or assigns).
  • The Publisher Sub-Class includes book or periodical publishing companies that own a U.S. copyright interest in an Insert or have published a Book, and their respective successors and assigns.
  • This DOES include authors, co-authors, publishers, and heirs of an author.
  • This DOES NOT include authors who assigned their rights or works for hire.
  • This DOES include copyright interests implicated by uses described in the settlement such as the reproduction or display of a book. 
  • This DOES NOT include uses like the audio version or performance rights to a book, for example, which is not contemplated by the settlement.

Are photographs or illustrations contained in Books included?

If you hold rights in a photograph or illustration in a Book, you MAY be included in the settlement. Photographs or illustrations are covered by the settlement ONLY where either the person or entity that holds the U.S. copyright interest in the book in which the image appears is the same as the image itself OR the image is an illustration in a children’s book. 

  • Illustrators for children’s books who have a copyright interest in a book containing their illustrations should claim their rights as a ‘Book’. However, if you hold illustrations in a children’s book but do NOT have a copyright interest in the book containing those illustrations, you should claim your rights as an ‘Insert’.

What is an Insert?

The Settlement defines both Books and Inserts. While the definition for Books is fairly straightforward, the definition for Inserts warrants your careful consideration. Generally, Inserts are elements incorporated in a Book, government work or public domain book published on or before January 5, 2009. Inserts are defined as elements such as (1) text, such as forewords, afterwards, prologues, epilogues, poems, quotations, letters, textual excerpts from other Books, periodicals or other works, or song lyrics; or (2) tables, charts, graphs, musical notation (i.e., notes on a staff or tablature); or (3) children’s Book illustrations.   They must be protected by a U.S. copyright, where the U.S copyright interest in the Insert is held by someone other than a Rightsholder of the Book’s “Principal Work.” 

What happens if I do nothing and am included in the Settlement?

Keep in mind that the court may approve, amend, or reject the settlement based on the Fairness Hearing scheduled for October 7, 2009. However, if the Settlement is approved as written, members of the author and publisher sub-classes will be entitled to royalties for certain uses of their copyrighted works and will be able to avail themselves of rights afforded to members of the class. You do not need to do anything now for that to happen. Again, if the settlement is approved as written, to collect your cash payments for Google’s pre-settlement scanning, you will need to file a claim by January 5, 2010. Please review the Google Settlement website for more detailed information. 

What happens if I opt out?

If you opt out, you reserve your right to sue Google for copyright infringement. You will not receive royalties under the framework of the Settlement as written. Your work will not be viewable in the Google Library Project.

Contact:

Melissa Levine
Copyright Officer and Senior Associate Librarian
University of Michigan Library
copyright@umich.edu

 

 

 

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Last modified: 02/21/2013