Amended Settlement Filed in Authors Guild v. Google

November 13, 2009. We’ve filed the amended settlement in Authors Guild v. Google. The official documents will be available at googlebooksettlement.com at some point over the weekend. In the meantime, here are the big changes:

1. Smaller Class; Representation of Foreign Countries on Registry Board. We’ve narrowed down the class to authors and publishers of works registered in the U.S. and authors and publishers of works published in the three other countries that have contributed the largest number of English-language works to American libraries: Australia, Canada, and the U.K. Each of these countries will have an author and a publisher seat on the Book Rights Registry board.

2. Independent Fiduciary for Unclaimed Works. An independent fiduciary approved by the court will be solely responsible for decisions regarding unclaimed works.

3. Unclaimed Funds Held for up to 10 Years, Will Go Only to Charities and Finding Rightsholders. The Book Rights Registry will now hold unclaimed funds for ten years, instead of five. (After five years, one-quarter of the unclaimed funds can be earmarked for finding rightsholders.) There will be no distribution of any of the unclaimed funds to claiming rightsholders. Instead, unclaimed funds will go to charities in the U.S., Canada, the U.K., and Australia as determined by court order after 10 years.

4. Elimination of “Most-Favored Nation” Clause, Restrictions on Discounting. The so-called “most-favored nation” clause is out (if you don’t know what it is, no need to get up to speed on it). Also out are various restrictions on discounting by Google. Authors will get their cut, regardless: Google’s discounts still come out of its own pocket.

5. Well-Defined Future Potential Business Models. Future business models have been pared down to three: individual subscriptions, print-on-demand, and digital downloads. None of these business models can be implemented by Google without approval of the Registry’s board, and none can be implemented without notice to all claiming rightsholders, who will have the absolute right not to participate. (The Unclaimed Works Fiduciary, of course, will determine whether unclaimed works will participate in any future business models.) Note: this doesn’t affect the previously well-defined business models that get the green light on approval of the settlement — ad-supported previews, consumer online editions, page-fees for print-outs from public access terminals, and institutional subscriptions.

6. Plenty of Time. There’s extra time to make claims for the $60 to $300 per book digitization payments — it’s been extended to March 31, 2011. There’s also plenty of time to remove your works from Google’s database: you can ponder this until March 9, 2012. (Remember, we don’t recommend removal, since it’s irreversible: you’ll remove yourself from this market forever.)

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What hasn’t changed? Almost everything else.

The settlement still provides these benefits to authors:

Find new readers. Out-of-print books need no longer be relegated to the used book market. The settlement will make out-of-print works available to hundreds of millions of readers, through ad-supported previews, sales of online editions, and institutional subscriptions. If a book catches on, there will be sales data to prove it, which may create an opportunity to bring the work back into print in traditional form.

In-print books are unaffected. A cardinal rule in the negotiations was not to disturb the market for in-print books. Titles that are in print won’t be made available through any of the means described in the settlement, unless the author and publisher expressly want them to be.

A Book Rights Registry to protect rightsholders. A non-profit registry governed by authors and publishers will oversee the settlement on their behalf, to help make sure rightsholders receive the benefits they’re entitled to. (Sign up for the Registry by filing a claim at googlebooksettlement.com.)

A fair share of revenues. 63% of gross revenues go to authors and publishers; Google keeps 37%. The funds will be paid to the new Book Rights Registry, which will pay authors and publishers after retaining a modest administrative fee. If rights have reverted to authors, they will receive 100% of the rightsholder revenue.

Unprecedented control for authors and publishers. Authors and publishers will manage their rights through an account management page at the Book Rights Registry. Authors who control rights to their works, for example, may choose to allow Google to display ad-supported previews of books, sell online editions (authors may set the price or let an algorithm do it for them), and license the work to colleges and universities, or they may choose to block all display uses. Authors can change their minds, at any time, with reasonable notice. What if a book comes back into traditional print? The rightsholder can then simply turn off all display uses, if it chooses, and permit the publisher to sell the work through standard retail outlets.

Authors’ estates, too. Authors’ estates exercise the same rights as authors.

At least $45 million in payments for unauthorized scanning. Any of Google’s digitizing of in-copyright books done before May 5, 2009 is considered unauthorized under the settlement. Google will pay to obtain a release of these copyright infringement claims. Under the settlement, Google will pay at least $60 and as much as $300 to rightsholders for each book that it scanned without authority, for a total payment to rightsholders of at least $45 million.

 

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