Letter: Read the Terms of the Google Book Settlement Agreement

Today, the New York Times published a story reporting that the U.S. Justice Department has begun an inquiry into the antitrust implications of Google’s settlement with authors and publishers over its Google Book Search service.

The settlement, announced in October, gives Google the right to display the books online and to profit from them by selling access to texts and selling subscriptions to its entire collection to libraries and other institutions. Revenue would be split among Google, authors and publishers. But critics say that Google alone would have a license that covers millions of “orphan books,” whose authors cannot be found or whose rights holders are unknown.

The news gives me the perfect opportunity to weigh in on this issue from the perspective of an author. I am inclined to participate in the program, thereby forgoing my right to sue Google. The main reason is that listing your book in the Google index would make its existence known to lots of people, which would presumably boost sales. But I still have a few concerns.

Among them:
1. How much money could Google Books bring an author? That is one big unknown here. And it makes it hard to come to a decision without knowing the potential return on on a Google Books licensing deal.

2. Authors need more time to figure out the deal and its implications. On that note, I was happy to hear that this Tuesday Judge Denny Chin of Federal District Court in New York, who is overseeing the settlement, postponed by four months the May 5 deadline for authors to opt out of the settlement and for other parties to oppose it or file briefs. The decision follows requests by groups of authors and their heirs, who argued that authors needed more time to review the settlement. My colleague Rob Hof wrote on TechBeat that he expects Chin to take a month deciding whether the settlement should go forward.

3. Is there any way to make the program easier to understand and practice? I write about these issues for a living and I am having a hard time getting my head around all the structure and mechanics of the program. Apparently, authors need to create a user account in order to dictate what licenses they grant to Google. Yet I still have no idea where I would go to create that account or how that process works.

I look forward to hearing comments on this post, especially from other authors. I haven’t found a water cooler yet where authors are debating these issues. Perhaps my blog can serve as one little forum.

Here’s the copy of an email I got from my agent detailing the terms of the Google Book Settlement:

In response to the formation of Google’s Library Program, involving copyright-infringing activity, the Authors Guild has taken a class action against Google, resulting in a settlement and the intended creation of the Book Rights Registry, a subsidiary organization that will represent the interests of authors and publishers and will enforce the decisions of the Google Book Settlement and audit Google as necessary.

Google’s Library Program will contain books that are out-of-print (unless rights-holders say otherwise), not books that are currently in-print (unless rights-holders offer their inclusion), and with the exception of children’s/picture books, there will be no pictures included.

For out of print books that are included in the program, rights-holders may grant any of the following licenses if they choose to stay included in the program:

1. Public Access License – free online portal to view database of
out-of-print books, such as at a public library. However, it is a “see only” policy here, and if the pages are to be printed, there will be a per-page fee.
2. Preview License – (comparable to Amazon’s “Search Inside the Book”
feature) online preview of selected pages of the book (but is non-printable).
3. Outline Editions – not a pdf, download, or ebook – this is an
online-only edition that charges a price between $1.99 – $29.99 with a median price of $5.99. The book can only be viewed after purchase, and can be printed as well.
4. Institutional Subscriptions – Google can license institutions the
entire database for a flat fee/annual subscription. This is where they expect their greatest monetary results.

As the author, you will be entitled to receive $60 for each copyright infringement by making a claim to your work. Not all work has been infringed upon, but making a claim regardless of whether that’s the case or not, ensures that you will have credit in the Book Registry and will further protect your rights. As your agent, we will be able to make these claims on your behalf, but each client is encouraged to create an account in order to dictate which licenses to grant Google per each book or insert or inclusion in an anthology. Clients can change their elections at any point after making claims and activating their account. Clients can make the claims themselves or agents can make claims on behalf of their clients. The client will have to make the specific licensing elections if he/she decides to remain a part of the program, but the agent can file the claim on their behalf while still allowing the client to create an individual account on the Book Rights Registry online system to have control over their licensing elections (which are changeable at any point after setting up an account).

Please note that as clients, you also have the option to opt out of the settlement, retaining the right to sue Google separately. Please also note that in order for books to be covered in this settlement, they must have been published and copyrighted before January 5, 2009.

The money flow for books in the Google Library Program will be as follows:

– Out of-print, Reverted Rights = 100% to Author
– Out-of-print, No Reversion of Rights = 50/50 to Author/Publisher
– Out-of-print, No Reversion of Rights, Contract Pre-1987 = 65/35 to
Author/ Publisher
– In-Print, Chosen to License = Almost all cases, $ to Pub, Pub pays
Author per contract terms (can be exceptions, but for most part, split as decided in contract)
– Institutional Subscription = Google collects $, keeps 37% and passes
63% to the Registry. The Registry keeps 10-20% of the 63% (exact %
TBD) and the remainder is passed to the rights-holder.

Please let us know if you would like to participate in the program before April 10, 2009. If we do not receive a response from you by April 10, we will assume that your wish is inclusion in the program.

You will still be responsible for making your individual accessibility elections and maintaining your active online account with the Book Registry. If you would like to file the claim yourself and set up your account simultaneously, this must be completed before January 5, 2010.
Once you do this, you will have the freedom to change your elections and even to withdraw your book(s) from the program up until January 2011.

Should you have any questions about the settlement or the process outlined above, please visit http://books.google.com/booksrightsholders/ for further explanation, details, and directions.


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