On November 13, 2009, the parties to the Author’s Guild, Inc. v. Google, Inc. lawsuit submitted a revised settlement agreement, for which it sought court approval. Prior posts about the lawsuit and its implications can be found here.
The revised settlement agreement is 171 pages (the original agreement was a mere 134 pages) – so it will take some time before all of the pivotal terms and conditions are understood and vetted by the media, government agencies and the public. I have only briefly scanned the revised agreement, and may decide at a later date to enhance my own written analysis of its implications as I become more familiar with its terms.
In the meantime, here are some provisions of interest of the revised Agreement for your preliminary consideration:
* Google will pay “a minimum of $45 million into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the May 5, 2009.” Agreement ¶ 2.1(b).
* Anyone who wishes to receive a cash payment under the revised settlement agreement must file their claim form by March 31, 2011.
* Plaintiffs’ attorneys can receive up to $30 million in fees after the effective date of the Agreement (assuming that it obtains final approval by the Court). Agreement ¶ 5.5.
* The Agreement proposes to distribute “at least $60 per Principal Work,” and less for entire copies of “inserts” ($15) or partial copies of “inserts” ($5). Agreement ¶ 5.1(a).
* Certain foreign works have been removed from coverage by the Agreement (although works published in Britain, Canada or Australia are still covered). Agreement ¶ 1.19.
* Other online book distributors may participate in the distribution of out-of-print and unclaimed works (a right that previously had been reserved for Google exclusively). Agreement ¶ 2.4.
* Rights holders can direct Google to exclude their works (with some limitations) provided that the request is received no later than March 9, 2012. Agreement ¶ 3.5(a)(iii).
* Google may still elect to exclude works from the database for any “editorial or non-editorial” reasons, although it must provide a digital copy of the excluded work (along with an explanation of why it was excluded) to the Book Rights Registry. Agreement ¶¶ 3.7(e) & (e)(i).
* Google apparently will be allowed to continue scanning works that are not subject to payment under the Agreement. Agreement ¶ 3.1(a). Thus, even this revision appears to severely limit the online distribution rights of authors and publishers.
* Books and inserts can be designated as either “Display” or “No Display” – in other words, the author/publisher can request that the book not be displayed in search results. Agreement ¶¶ 3.3, 3.4. It appears, however, that the scanned copy of a book designed “No Display” will continue to exist in the database, even if Google is not permitted to display it in the search results.
Other Analyses of the Revised Settlement Agreement
Others have opined about the impact of this revision, including the following:
* Jonathan Band’s A Guide for the Perplexed, Part III, analyzing the November 13 amendments to the settlement agreement in great detail;
* Copyright Clearance Center seminars and webinars about the impact of the settlement;
* Electronic Frontier Foundation’s Deep Links Blog covered the revised settlement agreement from the perspective of the pros and cons, access, competition, and privacy;
* Dr. James Grimmelman’s Blog, The Laboratorium;
* The Official Settlement Web Site;
* The Public Index and its annotated copy of the revised settlement agreement;
(*Note that I have not fully analyzed or reviewed each of these external links – and therefore do not endorse their opinions or recommendations. I am providing links to these sources, however, in the interest of fostering a diverse and robust discussion of the impact of this agreement on copyright law and electronic book publishing into the future.)
Court Grants Preliminary Approval and Sets Deadlines
On November 19, 2009, the Court granted preliminary approval of the Amended Settlement Agreement, and set February 18, 2010 as the new hearing date for the Final Fairness Hearing. Any opposition to the revised settlement agreement must be filed by January 28, 2010. Any class member who wishes to appear at the hearing must file a Notice of Intent to Appear no later than February 4, 2010.