July 29 2009|
You have probably gotten it in the mail by now. Or maybe by e mail. Or maybe you saw it in one of the many newspapers where it appeared. The big bold headline would have caught your attention:
If You Are a Book Author, Book Publisher or Other Person
Who Owns a Copyright in a Book or Other Writing,
Your rights may be affected by a class action settlement
regarding Google’s scanning and use of Books and other writings.
Your next thought was probably, What is this class action all about? And then, What is a class action? And then, Oh dear, what am I going to do about this?
Hopefully, this article will help you answer those and other questions you may have about this highly important case. The proposed settlement is very complex and involves numerous important social issues. There are already oodles of pages of commentary on it, and the settlement itself is more than 200 pages long. So this article has to be a “bare bones” discussion dealing with what I think are the matters of most concern to Guild members now. Of course, you might think you’ve read about the bare bones of a dinosaur by the time you get through it. Sorry.
A Quick Introduction to the Proposed Settlement
A good, brief introduction to the proposed settlement is the letter by Roy Blount, Jr., President of the Authors Guild at http://www.authorsguild.org/advocacy/articles/member-alert-google.html. Then you can move on to the links at the end of his letter. The way I’d introduce the settlement is to say that it makes it possible for computers in public libraries, colleges, universities, and other places to become entrances to the biggest library in the world; that it can make the huge number of in-copyright but out-of-print books more readily available to readers; and that it offers authors and illustrators opportunities to benefit from the internet and the changes in how “books” are delivered to readers. That is not to say that the settlement is perfect; no settlement is. But this one is a BIG deal and will have a big effect on how the written – and illustrated – word is delivered and distributed for many years to come.
If you have never used Google Book Search (GBS), you may want to take a quick look before reading more. You can get there by going to the Google home page, clicking the drop down menu “more” at the top then going down to click “books.” It is worth checking out and will give you a sense of how BIG the online library Google has already created is. For a little fun, search for your own name. You’ll probably find things you didn’t expect – I know I did. To get a quick The first thing to understand is that Google has already digitalized a huge number of books, and made these books searchable in GBS. It helps to think first of these books as being in three groups: (1) books that are out of copyright and in the public domain; (2) books that are in-copyright, but out-of-print; and (3) books that are in copyright and in print. Interestingly, the middle group is really big, so finding a way to make these books accessible to readers is an important public policy goal.
The next thing to understand is that GBS is actually two programs: (1) The Partner Program where GBS gets books from publishers; and (2) the Library Project where GBS scans books from the collections of some major library around the world. Books from both programs go into the book Search index. However, when you search, what you see depends on where the book came from.
If the book came from Library Project and is in the Public Domain, you will be able to browse and download whole book in pdf. If the book came from the Partner Program, Google lets you see only as much as the publisher wants you to see (much like the “look inside” feature on Amazon). If the book came from the Library Program and is in-copyright, Google let you search the whole book but only see “snippets” of the book. You can get an idea of how this works if you search for Edward Lear or Lewis Carroll in GBS. Some of the books are in the public domain, so you can see the entire book. However, other books by these authors (e.g., in-copyright books with new illustrations) will have come in through the Library Project or the Partner Program, so how much of the book you can see is limited.
Any time your search GBS and find a book, you also get a good deal of information about the book, including where you can buy it (in some cases, this is at print-on-demand sites) and in what library you can find it. So having a book in GBS provides authors and illustrators with a certain amount of free publicity that reaches a wider audience than traditional publicity does. The books at issue in the lawsuit are the in-copyright but out-of-print books that Google digitalized under the Library Program. However, as I noted earlier this is a lot of books (as in 50-70% of the book published after 1923).
The Lawsuit -- Simplified Version
When Google digitalized books made available to it through the Library Program, Google digitalized entire books, because it felt that people could not search books unless the full text was in the database, even though Google did not let searchers see more than “snippets” of in-copyright books. However, the Authors Guild and publishers groups who brought the suit claimed that Google was infringing on the copyrights by digitalizing entire books. Google claimed that its use fell under the "Fair Use" exception in the copyright law, and a number of commentators believe that Google had a strong argument.
The suit was filed as a class action. This is a special kind of suit where a few plaintiffs file as representatives of a (often large) group of people. What happens in class actions is that
(1) The Complaint is filed; (2) the class is certified by the court ; and (3) the parties agree on a proposed settlement – or the case goes to trial.
When the parties agree on a proposed settlement several things happen. The first one is that a notice is sent to class members. This notice tells them about the case and the proposed settlement. It also informs them of their rights and how to exercise these rights: (1) to opt out of the case; (2) to make a claim and how to do so; and (3) to object to the proposed settlement and how to do so.
The next important thing that happens is that the court holds a “fairness hearing” on the proposed settlement, and considers any objections to the settlement. Then, the court decides whether to approve the settlement, possibly with modifications. Finally, the claims of class members who have not opted out are satisfied.
In this case, you should understand that any claims you may have would be for a book or “insert” (as defined in the settlement agreement) to which you hold the copyright and which was published on or before January 5, 2009. Such a book or insert is covered by the settlement even if the book or insert has not yet been digitalized by Google. Books published after January 5, 2009 are not covered by the settlement, though they may well become part of the GBS database at a later date through the Partner Program.
To be covered by the settlement, the book also has to have been registered with the US Copyright Office. (Some of you asked me why that is the case; It is because a requirement for filing a copyright infringement suit is that the copyright is registered. You own a copyright as soon as a work is in fixed form, but you must register the work before you sue for infringement.
Sally Canzoneri is a member of the DC Bar. Please note, though, that this article is legal commentary and does not constitute legal advice for readers. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.