By Bill Powell
OWAA Legal Counsel
All OWAA members who are book authors need to be aware of an ongoing copyright case in the federal court in New York. In fact, if any relative of yours has ever written a book, you need to know about this. The case potentially affects all holders of copyrights for all books ever published or distributed in the United States, and all holders of copyrights of other material (excluding photographs) that is inserted or quoted in published books.
This case, filed by The Authors Guild, Inc., and others against Google, Inc., may affect your rights and your income. There are some fast-approaching deadlines for deciding whether to object to the proposed settlement of this case and whether to allow it to affect or shape your rights to books or “inserts” in books if your rights currently have protection under the U.S. copyright laws. If you do nothing and let these deadlines pass, one likely result is that Google will be given a non-exclusive right to market all of your out-of-print books.
Many commentators say Google probably could fairly easily win this litigation under the “fair use” doctrine embedded in copyright law. The fact that Google is trying to pay a total of approximately $125 million to settle this and a nearly identical case filed by book publishers probably means it sees enormous potential profit from acquiring the use and marketing rights it will get under the settlement.
Whether this settlement is a good thing for authors is the subject of debate. It provides for direct cash payments in small amounts to book copyright holders (the copyrights must be registered with the U.S. Copyright Office and the holders must file claims after the settlement is approved, if that happens). Also, the settlement calls for payment of 63 percent of all revenues generated in certain defined ways going to benefit the copyright holders who participate, with Google keeping the other 37 percent. Official notices about the proposed settlement tout benefits from the settlement to authors and other rights holders. Those notices and other documents pertaining to the settlement may be found at www.googlebooksettlement.com. All holders of copyrights in books, whether now in print or not, need to review the material available on this Web site, as well as public commentary criticizing the settlement, found elsewhere. The first article at the top of the list resulting from my online news search for “Google Book Settlement” (ironically using Google) was a March 28, 2009, Wall Street Journal article by Lynn Chu titled, “Google’s Book Settlement Is a Ripoff for Authors.” Its concluding sentence is, “Say goodbye to your rights, forever, authors, if this mess goes through.”
The first document I’d recommend reading is the one-page “summary notice” found at the Web site given above. Second, you should look at the 32-page actual “notice.” Also useful for detail and clarification are the 141-page Settlement Agreement and its hundreds of pages of attachments.
A “fairness hearing” is scheduled in the Southern District of New York federal court Oct. 7, 2009. At or after that hearing the court will make a final decision about whether the settlement will be approved. Anyone wishing to speak or have an attorney speak at this hearing must notify the court no later than Sept. 4, 2009.
Preliminary approval already has been given by the court to the proposed settlement of this class-action suit. Individuals in one group of copyright holders affected (those whose books are out of print and are not being sold currently) will automatically be included in the settlement, and they will be restricted to the compensation available under the settlement agreement unless they opt out by Sept. 4, 2009. If they do not opt out, Google will have extensive rights to digitize and profit from their out-of-print books, although the agreement provides a formula for payments to those authors. Those who worked out this agreement evidently think of its terms as generous to the rights holders. Book copyright owners should be aware, however, that this settlement they negotiated includes payment of $30 million to the attorneys who represented the plaintiff class of authors. Individuals in the other group of copyright holders affected (those whose books are currently in print and being sold) give Google no rights to digitize and sell the books and get none of the potential monetary benefits from the digital marketing contemplated and already under way by Google, unless they opt to be included in the settlement. Those who prove through the claim-filing process (which has deadlines) that they own rights to certain books are to be given the right, exercisable in certain set ways, to control or limit Google’s uses of the books.
Google began digitizing books in certain university libraries in 2004 and to date has digitized several million books. Some already are in the public domain because copyright law protection for them has expired. Of course, Google, like the rest of us, is free to market such books however it chooses and keep all proceeds. It also, however, digitized many books to which copyright law protection still applies. It is only these copyright-protected books – but it’s all of them – to which the proposed settlement applies. The attractiveness of this $125 million settlement for Google is probably because under it Google gets a big head start on competitors in profiting from marketing copyright-protected books digitally.
This case is another in the sequence that includes the Supreme Court’s Tasini case, the Napster case, the Faulkner and Greenberg cases against National Geographic, and the class-action case called In re Literary Works in Electronic Databases Copyright Litigation, which the U.S. Supreme Court recently agreed to review under its new name, Reed Elsevier, Inc. v. Muchnick. All these cases have been discussed repeatedly in my previous articles in Outdoors Unlimited, and those articles can be found by searching the archives. All these cases involve the ongoing struggle to apply copyright law in the current rapidly changing digital world.
Each decision by a rights holder about whether to object to the Google books settlement and whether to participate will depend on unique considerations. Hopefully those decisions will be well-informed.
Bill Powell, of Columbia, Mo., is OWAA’s legal counsel and a columnist.