Anthony Elia

The Department of Justice has released a brief stating that the Google Book Search Settlement should be rejected by the federal court overseeing its approval. “As presently drafted the proposed settlement does not meet the legal standards this court must apply,” the Department of Justice report concluded. “This court should reject the proposed settlement and encourage the parties to continue negotiations to comply with Rule 23 and the copyright and antitrust laws” but goes on to state that, “a properly structured settlement agreement in this case offers the potential for important societal benefits.” 

The Department proposed that the parties consider a number of changes to the agreement, including:

* Imposing limitations on the most open-ended provisions for future licensing
* Eliminating potential conflicts among class members
* Providing additional protections for unknown rights holders
* Addressing the concerns of foreign authors and publishers
* Eliminating the joint-pricing mechanisms among publishers and authors, and  
* Providing some mechanism by which Google’s competitors can gain comparable access.
 

The United States Justice Department has opened an antitrust investigation into the proposed settlement agreement between Google and the representative publishers and authors which forms the basis of the proposed settlement of the class action suit The Author’s Guild v. Google.  This week the Justice Department advised the Court of the commencement of the investigation citing public expressions of concern as the basis.  In connection with the opening of the investigation, the parties to the suit have been served with investigative demands for information by the Department of Justice.  Judge Denny Chin, who oversees the case, set a deadline of September 18th for the Department to submit its written objections and also granted the Department the right to set forth its objections at the fairness hearing scheduled for October 7th.   

The deadline to Opt-Out is September 4, 2009 (extended from May 5, 2009).

The deadline to file a Claim Form for Cash Payments for past use is January 5, 2010. 

The deadline for demanding Removal of your work from the Google Book Project is April 5, 2011.

Note that the Google Book Settlement is not final and may be changed by the court, so these deadlines may change.  Accordingly, be sure to check back periodically and certainly no later than the date of the Final Fairness Hearing on October 7, 2009. 

The Authors Guild anounced today the settlement of Authors Guild v. Google.  Posted below (with permission) is the statement released by the Guild’s President Roy Blount, Jr.:  

A couple months after I became Authors Guild president in 2006, we met with Google to propose a settlement to our class-action lawsuit. The Guild had sued Google in September 2005, after Google struck deals with major university libraries to scan and copy millions of books in their collections. Many of these were older books in the public domain, but millions of others were still under copyright protection. Nick Taylor, then the president of the Guild, saw Google’s scanning as “a plain and brazen violation of copyright law.” Google countered that its digitizing of these books represented a “fair use” of the material.  Our position was: The hell you say.  Of such disagreements, lawsuits are made.

Our proposal to Google back in May 2006 was simple:  while we don’t approve of your unauthorized scanning of our books and displaying snippets for profit, if you’re willing to do something far more ambitious and useful, and you’re willing to cut authors in for their fair share, then it would be our pleasure to work with you. 

We’re happy to report that our proposal found a receptive audience at Google and at Association of American Publishers and the several publishing houses that had filed a separate lawsuit in October 2005 against Google.  Reaching final agreement turned out to be not so simple, but today, after nearly two and a half years of negotiations, we’re joining with Google and the AAP and those publishers to announce the settlement of Authors Guild v. Google.

The settlement, which must be approved by a federal judge before it takes effect, includes money for now and the prospect of money for later.  There’ll be at least $45 million for authors and publishers whose in-copyright books and other copyrighted texts have been scanned without permission.  If your book was scanned and you own all the rights, you’ll get a small share of this, at least $60, depending on how many rightsholders file claims. 

Far more interesting for most of us –- and the ambitious part of our proposal — is the prospect for future revenues.  Rightsholders will receive a share of revenues from institutional subscriptions to the collection of books made available through Google Book Search under the settlement, as well as from sales of online consumer access to the books. They will also be paid for printouts at public libraries, as well as for other uses.

The payments will flow through the Book Rights Registry, a new independent entity that can be thought of as the writers’ equivalent of ASCAP.  Much as ASCAP tracks the uses of songs and collects royalties for songwriters and musicians, the Registry will serve the interests of authors and others who own the rights to books appearing online as a result of this settlement. The Registry will be controlled by a board of authors and publishers; as part of the settlement, Google will pay $34.5 million to get the Registry up and running, notify rightsholders of the settlement, and process claims.

Readers are also big winners under the settlement of Authors Guild v. Google.  Readers will be able to browse from their own computers an enormous collection of books.  We hope this will encourage some readers to buy full online access to some of the books.  Readers wanting to view books online in their entirety for free need only reacquaint themselves with their participating local public library:  every public library building is entitled to a free, view-only license to the collection.  College students working on term papers will be able to point their computers to resources other than Wikipedia, if they’re so inclined:  students at subscribing institutions will be able to read and print out any books in the collection.

We expect that millions of out-of-print books (and many in-print books) will be available through Google Book Search to readers, but we don’t know how many, since that depends partly on you.  Participating rightsholders can choose to pull their books from this service with reasonable notice at any time and will retain substantial control over Google’s presentation and pricing of their books.

As with any class action, individual class members remain free to opt out of the settlement.

There are many, many more details, but I’ll leave those to the official notice.  There’s also an official press release, edited to within an inch of its life and the settlement agreement itself.  They’re linked below; be my guest.

The House of Representatives has passed a good bill that would prevent American courts from enforcing libel judgments obtained in foreign countries if those countries provide less free speech protection than the United States does.  H.R. 6146 provides that ”a domestic court shall not recognize or enforce a foreign judgment concerning defamation unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.”

H.R. 6146 would U.S. authors and publishers a basis for attacking foreign judgments in domestic courts as the New York Libel Tourism Protection Act does. 

Ballantine has called off publication of author Sherry Jones’s racy historical novel about Aisha, the young wife of the prophet Muhammad.  Random House was set to publish the novel, “The Jewel of Medina,” on Aug. 12.

According to an Op-Ed in the WSJ (Aug. 6, 2008), Thomas Perry, deputy publisher at Random House Publishing Group, said that the company received “from credible and unrelated sources, cautionary advice not only that the publication of this book might be offensive to some in the Muslim community, but also that it could incite acts of violence by a small, radical segment.”

The publisher and Jones have entered a termination agreement so that the book can be shopped to other publishers.  Other details about the termination, including the advance have not been released.

As the “The Jewel of Medina” situation illustrates, an author should seek an objective standard for manuscript approval and publication such as “professionally competent and fit for publication.”  Such contract language may give an author some recourse, even if it doesn’t change the publisher’s actions.

All author collaborators should have a written collaboration agreement.  A good agreement can provide guidance, prevent disputes and resolve problems when they arise.  No two collaborations are alike: in each there will be a unique balance of contributions of celebrity, experience, writing skill, technical knowledge, and sweat.  And in each collaboration the parties will divide the resulting fruit of their labors differently. All collaborators should discuss and address in writing where relevant the following issues:

1) Who will have authority to make legal, business and editorial decisions?

2) How will the rights be divided in the final work and in partially completed work if the project does not go to completion?

3) How will authorship be credited?

4) How will the collaborators be compensated?

5) How will the work be divided?

6) What will happen if the project does not go as planned?

7) What happens in the event of death or disability of either collaborator?

8) Under what circumstances can (or must) the collaboration be deemed terminated?

© 2007 Anthony N. Elia