Google Book Search Settlement: Reviewing the Notice of Settlement

Beyond the public pronouncements of the Google Books Settlement ((See the bottom of this earlier post on DLTJ for a complete list)) are the documents that form the meat of the agreement. The full text of the proposed settlement agreement is 141 pages plus another 162 pages of appendices. The Proposed Notice of Class Action Settlement itself -- a summary of the complete settlement -- is 38 pages, and is what is reviewed in this post. (The proposed settlement agreement may be covered in a future post.) The Notice of Settlement is chock full of interesting nuggets and hints of even more interesting things in the complete summary agreement. Even the printed version of the summary posted here is about 10 pages long.

Two notes before we get started. First, for readers who don't normally follow DLTJ, this exploration through the Notice of Settlement is taken from a decidedly library (and library technologist) point of view. There are lots of bits that will probably be of greater interest to authors and publishers (like formula for determining how much compensation is due, etc.) that are not covered here. Second, this is a review of the document as it was submitted to the U.S. District Court for the Southern District of New York in the case of The Author's Guild et al v. Google Inc.. The court needs to review and approve it, and details may change between now and then. There are lots of holes in the document -- notably dates and URLs -- that will need to filled in.

In the summary below, references to the Proposed Notice of Class Action Settlement take the form of the word "Notice" followed by the question number and possibly the paragraph number plus the page number. For instance: "(Notice: Q9(A), p. 11)"

Important Definitions

Classes.

The plaintiffs in the lawsuit are divided into two classes: the Author sub-class and the Publisher sub-class. The explanation of those are probably pretty self-explanatory. Members of these two subclasses that "do not timely and properly opt out of the Settlement ... are referred to in the Settlement and in this Notice as 'Rightsholders.'" (Notice: Q5, p. 7) It is also interesting to not what is explicitly excluded:

Photographs, graphic designs, artworks, illustrations (other than illustrations in children's Books) and other images and works of visual art that are included in Books are not considered Inserts and are not covered by the Settlement, UNLESS the U.S. copyright interest in those works is held by the Rightsholder of the Book. (Notice: Q5, p. 7)

So it would seem that if you are a photographer or illustrator, you're not covered. I wonder what this means for those that design book jackets. First, are book jackets covered by this agreement? If so, it would seem that the rights of those who create them are not covered by the agreement.

Book.

The definition of "Books" is key to the Settlement. This is verbatim copy with emphasis added from (Notice: Q6, p. 8):

For purposes of the Settlement, a “Book” is a written or printed work on sheets of
paper bound together in hard copy form that:

• Prior to January 5, 2009, was published or distributed to the public or made available for public access under the authorization of the work’s U.S. copyright owner(s); and
• Has been registered with the U.S. Copyright Office as of January 5, 2009, UNLESS the work was first published outside the United States, in which case such registration is not required; and
• As of January 5, 2009, is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement. ...

EXCLUDED from the definition of “Book” are the following:

• Periodicals (e.g., newspapers, magazines or journals). See Section 1.102
• of the Settlement Agreement for a full definition of “Periodicals.”
• Personal papers (e.g., unpublished diaries or bundles of notes or letters).
• Sheet music and other works that are used primarily for the playing of music. See Section 1.16 of the Settlement Agreement for a more detailed description of these works.
• Public domain works, meaning works that are in the public domain under U. S. copyright law.
• Government works, meaning written works that are not subject to copyright because they are authored by the U.S. government or that are subject to equivalent treatment under any state’s law, as defined in Section 1.64 of the Settlement Agreement.

A couple of interesting points here. First is the date of January 5th, 2009 itself. By saying that books must be "published or distributed" prior to that date, it would seem to automatically exclude everything forever published after that date. The implicit meaning here would seem to be that books published on January 5th, 2009 and after, the author/publisher would need to go through the Google Book Search Partner Program -- e.g. the Publisher arm rather than the Library arm of Google Book Search. Note that I don't find this explicitly in the agreement.

Second interesting note is that the work has to be registered with the U.S. Copyright Office as of that same date. Note that the answer to the FAQ of "When is my work protected?" says "your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." The Settlement, however, requires registration -- an act that itself carries a fee of $35 to $45.

Third, explicitly excluded from this agreement are "periodicals". The full definition of "Periodicals" from section 1.102 of the agreement (which I might get to in a subsequent post), but it would seem to include things that are already digitized and available in Google Book Search. Should we expect a lawsuit to follow from journal publishers?

Insert.

The Settlement covers not only copyrighted books but also copyrighted inserts (Notice: Q6, p9):

For purposes of this Settlement, an “Insert” must:

• Consist either of (1) text, such as forewords, afterwords, 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 children’s Book illustrations; and
• Be contained in a Book, government work or a book that is in the public domain; and
• Be protected by a U.S. copyright, where the U.S copyright interest in the Insert is owned or held by someone other than a Rightsholder of the Book’s “Principal Work.” “Principal Work” is further defined in Question 8(C) below. For example, if you own rights in a poem that is contained in a Book for which you also hold a U.S. copyright interest, then your poem, as it appears in your Book, is not an Insert; however, it would be an Insert if the poem is contained in a Book for which someone else holds the U.S. copyright interest; and
• Be registered, either alone or as part of another work, with the U.S. Copyright Office as of January 5, 2009, UNLESS the Insert or work was first published outside the United States, in which case such registration is not required.

EXCLUDED from the definition of “Insert” are

• Pictorial works, such as photographs, illustrations (other than children’s Book illustrations), maps and paintings.
• Works that are in the public domain.

For purposes of receiving payments for the use of Inserts, the Settlement
identifies two types of Inserts:

• “Entire Insert,” which is an Insert that is an entire work, e.g., forewords, afterwords, introductions, entire works included in anthologies, entire poems, entire short stories, the entire lyrics of a song, and entire essays.
• “Partial Insert,” which is any other type of Insert. Partial Inserts include excerpts from a work (e.g., excerpts from a Book or magazine article, quotations, stanzas from poems or portions of a song’s lyrics).

There is the same requirement for registration with the U.S. Copyright Office. The first question that leapt to my mind in reading the first bullet point of the definition was "what about books that have chapters written by separate authors?" but that seems to be covered under the definition of an "Entire Work" ("...entire works included in anthologies..."). It could be a matter of interpretation, though; it would be nice to see it more explicitly stated.

Commercially Available.

The Books and Inserts are divided along the lines of what is 'Commercially Available': "Google will initially classify a Book as ‘Commercially Available’ if Google determines that the Rightsholder... is currently (i.e., at the time Google makes the initial determination) offering the Book for sale through one or more then-customary channels of trade in the United States.... A Book classified as Commercially Available is presumptively classified as ‘in-print’ and a Book classified as not Commercially Available is presumptively classified as ‘out-of-print.’" (Notice: Q9(A), p. 14) This definition is important for what the Notice calls Display Uses.

Participating Libraries.

There is a whole section of the Notice defining the various types of libraries that participate in Google activities. This whole section (Notice, Q7, p. 10) can be distilled, I think, to this table:

Participating Library Classification	Provides Books to Google	Receives Digital Copies	Other Notes
Fully Participating Libraries	Yes	Yes	"The Settlement Agreement provides that Fully Participating Libraries will be able to make certain uses of their [digitize copies]."
Cooperating Libraries	Yes	No	"Must delete any digital copies of Books received from Google."
Public Domain Libraries	Only Books in the public domain	No	"Agree to delete any digital copies of Books received from Google"
Other Libraries	Yes	Maybe	These libraries do not agree to be in one of the other classifications above and "no claims are released with respect to any uses of digital copies by Other Libraries."

How Google Can Use the Material

Display Uses.

The definition of "Display Uses" is quite involved, and takes up a little over two printed pages of the Notice. The essential aspects are covered below (Notice: Q9(F); p. 17-19). Notable is the proposed ability to buy institutional subscriptions and individual consumer purchases, free access in public and academic libraries, and the "preview" that one can see before purchasing the book.

Subject to Rightsholders’ exclusion and removal rights discussed above, the Settlement authorizes Google to make the following Display Uses of all out-of-print Books and, upon the express authorization of Rightsholders, in-print Books:

1. Access Uses: Access uses are viewing and annotating the entire Book, and printing and copying/pasting portions of the Book, subject to certain page number limitations. These are full text uses of Books that Google is or may be authorized to make:
   1. Institutional Subscriptions: Educational, government and corporate institutions will be able to purchase time-limited subscriptions (e.g., by semester or by year) for their students or employees to access the full contents of the institutional subscription database. Google may also offer subscriptions to discipline-based collections. The pricing of the institutional subscription may vary over time, including to reflect increases in the size of the institutional subscription database....
   2. Consumer Purchases: Individual users will be able to purchase the right to access Books online. Rightsholders will have two options for setting the sale price of their Books: they can set the price themselves or they can allow Google to set the price based on a multi-factor formula that is designed to maximize revenues for the sale of the Book (the “Settlement Controlled Price”)....
   3. Public Access at Libraries and Elsewhere: Google will provide, on request, “Public Access” licenses for free through a dedicated computer terminal at each public library building and through an agreed number of dedicated computer terminals at non-profit higher educational institutions located in the United States. The Public Access service will provide the same access to Books as Google offers in the institutional subscriptions, except that users will not be able to copy/paste or annotate any portions of a Book. At public libraries that are able to charge for printing, and at all libraries at higher educational institutions, users will be able to print from the Public Access terminals for a per-page fee. Upon Registry approval, Public Access terminals may be made available for a viewing and per-page printing fee at commercial businesses such as copy centers, which will share those fees with Google and the Rightsholders. Revenues from the Public Access service will be based on a per-page charge for printing, with Google collecting the revenues from libraries or copy centers and sending 63% of those revenues to the Registry. Google will provide data tracking the usage of the Public Access service to the Registry, the libraries and other places where the service is available.
   4. Other Potential Commercial Uses: In the future, Google and the Registry may agree to develop other Access Uses, including consumer subscriptions (similar in concept to the institutional subscriptions); print on demand Books; custom publishing (per-page pricing of content for course packets or other forms of custom publishing for the educational and professional markets); PDF downloads (consumers would be able to download a PDF version of a Book); and summaries, abstracts or compilations of Books. Rightsholders will be notified, either directly or through the Registry’s website, of all new commercial uses that Google is authorized to make, and will have an opportunity at any time to exclude their Books from any or all of these uses.
2. Preview Use: In response to a user’s search, Google may allow the user to view up to 20% of a Book (no more than five adjacent pages) before making a purchase decision, but not to copy/paste, annotate or print any pages from the Book (“Standard Preview”). For Books of fiction, Google will block the last 5% of the Book (or a minimum of the final fifteen pages of the Book). Also, for Books of fiction, Google may display up to 5% or fifteen pages (whichever is less) adjacent to where a user lands on a given page. Rightsholders may also select another preview option, in which the pages available for preview are fixed (up to 10% of the pages of the Book, as chosen by Google and, if a mechanism to do so is developed, chosen by the Rightsholder) (“Fixed Preview”). The pages presented to the user with Fixed Preview do not depend on the user’s search. Rightsholders will have the ability to change the type of Preview available for their Books at any time. Preview uses are designed to serve as a marketing tool to sell the Book for Consumer Purchase or otherwise. Rightsholders are also expected to receive advertising revenues from advertisements placed on Preview Use pages for a Book....
3. Snippet Displays: In response to a user’s search, Google may display about three or four lines of text from a Book (a “snippet”), with up to three snippets per user for that Book. Rightsholders are expected to receive advertising revenues from advertisements placed on web pages that display one or more snippets from, and are devoted to, a single Book.
4. Display of Bibliographic Pages: Google may display to users a Book’s title page, copyright page, table of contents, and index.

Non-Display Uses.

There are also 'Non-Display Users' of materials that the Settlement describes as "uses that do not involve displaying any content from a Book to the public; examples include display of bibliographic information, full-text indexing (without displaying the text); geographic indexing of Books; algorithmic listings of key terms for chapters of Books; and internal research and development at Google." (Notice: Q9(G), p. 20)

Advertising.

One of the big questions leading up to the settlement was on the use of advertising on book pages. Some felt that to do so would mean Google would get a financial benefit from other's work. The Settlement includes a compensation plan by which authors and publishers can collect revenue from advertising placed on pages from which content from/about the book is displayed. (Notice: Q9(H); p. 20)

Uses by Fully Participating Libraries.

Of interest to those who are letting Google digitize all of their collections (Notice: Q9(I); p. 20-21):

The Settlement permits Google to provide to each Fully Participating Library a digital copy of all the Books in that library’s collection (a “Library Digital Copy” or “LDC”), provided Google digitizes a certain amount of Books at that library. Fully Participating Libraries are authorized to use their LDC: (a) to make copies to preserve, maintain, manage and keep current that LDC; (b) to provide access to Books in the LDC to users who have disabilities that render them unable to use printed versions of Books; (c) to create a print replacement copy of a Book that is damaged, deteriorating, lost or stolen; (d) to use indexes and finding tools, and to display snippets in connection with finding tools (except if a Rightsholder directs the Fully Participating Libraries not to do so); (e) to permit faculty and staff to use up to five pages of a Book that is not Commercially Available for personal scholarly use and classroom use, if those Books are not in the Institutional Subscription; (f) for Non-Consumptive Research (subject to the limitations described in Question 9(J) below); (g) if the U.S. Copyright Act is amended to allow use of orphan works, to use Books from their LDC in accordance with the amended statute; and (h) for other lawful uses that a Rightsholder or the Registry approves (the Registry may only approve uses that do not impair any rights of the Rightsholders). The Settlement Agreement also prohibits Fully Participating Libraries from making certain uses of their LDC; however, fair uses of Books that are not Commercially Available are not prohibited if no Institutional Subscription is available.

Research Corpus.

This is an interest tidbit that doesn't get mentioned in the brief PR pieces, but could be really interesting (Notice: Q9(J); p. 21-22):

In addition, digital copies of all Books digitized by Google at libraries will be combined into a “Research Corpus.” The Research Corpus may be hosted at up to two separate sites (“Host Sites”) at any given time. With the Registry’s approval, Google could become an additional Host Site (i.e., a third Host Site if two already exist). The Research Corpus will be made available to “qualified users” solely for engaging in specific types of research, including: (a) computational analysis of the digitized images to either improve the image or extracting textual or structural information from the image; (b) extracting information to understand or develop relationships among or within Books; (c) linguistic analysis, to better understand language, linguistic use, semantics and syntax as they evolve over time and across genres of Books; (d) automated translation (without actually producing translations of Books for display purposes); and (e) developing new indexing and search techniques.

For any Books that are Commercially Available as of January 5, 2009, or within two years thereafter, the Rightsholder has the right to withdraw the Books from the Research Corpus as long as they remain Commercially Available....

The Research Corpus and its use are subject to detailed requirements and limitations, all set forth in the Settlement Agreement....

Compensation

The "Benefit of the Settlement" section of the Notice begins with very flowery language (Notice: Q8(A), p. 11):

Plaintiffs view the Settlement as an excellent opportunity to breathe new commercial life into potentially tens of millions of out-of-print Books, and to provide an innovative marketing tool for authors and publishers of in-print Books.

Then comes the meat and potatoes:

Under the Settlement, Google is authorized to 1) sell to institutions subscriptions to an electronic Books database, 2) sell online access to individual Books, 3) sell advertising on pages from Books, and 4) make other uses, all as further described under “Access Uses” in Question 9(F)(1) below. Google will pay Rightsholders, through the Book Rights Registry (the “Registry”), 63% of all revenues received from these uses. The Registry will distribute those revenues to Rightsholders in accordance with the Plan of Allocation and the Author-Publisher Procedures....

Google agrees to pay these amounts (emphasis added):

• "To fund the establishment and initial operations of the [Book Rights] Registry, Google has agreed to pay US $34.5 million." (Notice: Q8(B), p. 11)
• "Google has agreed to pay a minimum of US $45 million to make cash payments for all of the Books and Inserts that Google will have digitized as of May 5, 2009... without Rightsholder authorization (“Cash Payment”)." (Notice: Q9(C); p. 12)
• "Subject to Court approval, Google will pay [Author Sub-class] attorneys’ fees and expenses of US $30 million." (Notice: Q19, p. 35)
• "Google has agreed to pay US $15.5 million in settlement of [the action brought by the Publisher Sub-class]" (Notice: Q19, p. 36)

The details about how much individual authors and publishers receive in compensation is left out of this summary. It is quite complicated and scattered all throughout the Notice, so you'll need to go read it yourself.

The Book Rights Registry

A key aspect of the agreement is the creation of the "Book Rights Registry." From (Notice: Q8(B), p. 11):

The Settlement establishes a not-for-profit Book Rights Registry that will maintain a database of Rightsholders, collect their contact information and information regarding their requests with respect to uses of Books and Inserts, and identify, locate and coordinate payments to Rightsholders. The Registry will represent the interests of the Rightsholders, both in connection with the Settlement as well as in other commercial arrangements, including with companies other than Google (subject to the express approval of the Rightsholders of the Books involved in such other commercial arrangements).

The section goes on to say: "After the funding of its initial operations by Google’s payment, the Registry will be funded by taking an administrative fee as a percentage of revenues received from Google (estimated to be 10-20%). The Registry will be jointly managed by a Board comprising an equal number of representatives of the Author Sub-Class and Publisher Sub-Class – at least four author directors and at least four publisher directors."

Permanent Removal

The Benefits of the Settlement says (Notice: Q8(A), p. 11, emphasis added):

Rightsholders can exclude their Books from some or all of these uses.... Rightsholders can also remove their Books altogether from the Books database (if already digitized) or direct Google not to digitize their Books so long as the request is made by no later than April 5, 2011.

Why a "stick"? Because it appears to be a final deadline by which a rightsholder can once and for all have their material removed from Google Book Search. The section on Non-Display uses says that "Rightsholders may not exclude Books or Inserts from Non-Display Uses." (Notice: Q9(G), p. 20) If a Rightsholder later wants to get the Book back into Google Book Search "it may be possible to contact Google subsequently to attempt to negotiate a separate deal for inclusion of the Book in the Partner Program." (Notice: Q9(D), p. 16)

And, in what I see as a sane move, "a removal request will not require Google or a Fully Participating Library to destroy back-up tapes or other back-up storage media that may contain copies of otherwise removed Books." (Notice: Q9(D), p. 16) Having to go through backup media to remove individual Books at a time would be a royal pain. I'd speculate that the plaintiffs thought it enough to have it removed from active service.

Interesting Dates

5-Jan-2009.

A date mentioned in (Notice: Q6, p. 8) as the definition of "Book". See discussion above for apparent ramifications of this date.

5-May-2009.

This date comes up early in the Notice; on page 2 it says "US $45 million paid by Google to copyright owners whose works Google has digitized without permission as of May 5, 2009." (Notice: preamble, p. 2 ) Does this mean May 5th is a tentative date that the settlement will take effect? It is also called the "Opt-Out Deadline". (Notice: Q9(C); p. 12) This is also the date that objections can be made to the Settlement. (Notice: Q16; p. 34)

5-Apr-2011.

Date by which Rightsholders must request that their materials be removed from all uses in Google Book Search. (Notice: Q8(A); p. 11)

Other Interesting Tidbits

In the Notice, Google says that they have "already digitized over seven million books" (Notice: Q2, p. 4) I think that is the first time I've seen them publish a number. And we'll get further insight later: "All Class members should go to [a link to be published later] to access a searchable database of Books that are covered by this Settlement." (Notice: Q5, p. 6)

Perhaps under a heading of "did you know copyright law could be obscene?" there are these two sentences, with my emphasis added for effect: "You should assume that you own a U.S. copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States.... If you own a copyright in a Book or Insert published in a country outside the United States, you are advised to seek advice from an attorney or a Reproduction Rights Organization to determine whether your interests would be better served by participating in this Settlement or opting out of the Settlement." Copyright Relations? Reproductive Rights Organization? Those sound like euphemisms to me. Just remember, when you engage in copyright relations with a company, you engage in relations with every other country that country has had copyright relations with.

There is an odd provision in the heading of "What are Authors' and Publishers' rights under the Author-Publisher Procedures?". For some reason "Educational Books" are handled differently. I'm not sure why (Notice: Q10(1), p. 27):

[The] arbitration right [by which authors can question the amount of payment for an in-print Book from a publisher] does not apply to authors and publishers of Educational Books (i.e., Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs); disputes between those parties must be resolved under the terms of the individual author-publisher contract for the Educational Book.

Like what you hear? The parties warn that it is going to take a while to make this happen. "It will take considerable time to implement the commercial uses authorized under the Settlement, implement the elections made by Rightsholders for their Books and Inserts, and make Cash Payments.... Please be patient, and visit the Settlement Website at www.googlebooksettlement.com regularly for updates." (Notice: Q8(E), p. 13) We'll have to wait and see...

The text was modified to update a link from http://www1.nysd.uscourts.gov/ to http://www.nysd.uscourts.gov/ on July 13th, 2011.

The text was modified to update a link from http://www.publishers.org/main/Copyright/CopyKey/copyKey_01_03.htm to http://web.archive.org/web/20081204195717/http://publishers.org/main/Copyright/CopyKey/copyKey_01_03.htm on November 13th, 2012.

The text was modified to update a link from http://books.google.com/booksrightsholders/notice.html to http://web.archive.org/web/20081211213014/http://books.google.com/booksrightsholders/notice.html on August 22nd, 2013.

The text was modified to update a link from http://books.google.com/booksrightsholders/agreement-contents.html to http://web.archive.org/web/20081219194925/http://books.google.com/booksrightsholders/agreement-contents.html on August 22nd, 2013.