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Google Book Settlement: information for Monash staff and students

Note:  This information was prepared by Monash as an explanatory guide to assist Monash authors understand the Settlement.  It is not a substitute for the terms of Settlement that govern the rights of claimants. Please refer to the Settlement website at http://www.googlebooksettlement.com

Update October 2012

The Association of American Publishers agreed to drop their suit against Google. Terms of the settlement were confidential but it meant publisher groups stopped suing over Google books. The authors groups, represented by the Author's Guild continued their class action against Google. However in a related case, the Hathi Trust were granted summary judgment against the Author's Guild for their retention and use of scanned copies of authors works they received from libraries that were partners with Google in Google Books.

For more information on these developments see:

Google Scanning Is Fair Use Says Judge - Publishers Weekly

Pubishers drop massive book-scanning suit - Authors Guild

Update April 2011

Justice Denny Chin has rejected the Google Book settlement. This means that the settlement cannot go ahead under the original terms (as listed below). The options for the parties are to continue litigation, drop the litigation or come to a new settlement taking into account some of the objections to the original settlement. We will inform staff when it is clear which option is being pursued. Those wishing to opt-out of any scanning of their works can still contact Google using the details listed below.

The Google Book Settlement (‘the Settlement’) is relevant to any Monash staff and students who have authored and published works prior to January 2009.

In order to find out whether your works are involved, to have a say in how Google will use your works or to receive compensation for past use of your work and/or payments for Google’s future use of your works, you need to read the advice presented on this and linked pages and take appropriate action. 

Background

In 2004 Google started a digitisation and online publishing project, the ‘Google Library project’, scanning the collections of various participating libraries across the world. The scanning project included both works out of copyright and works still in copyright. No copyright permissions were sought from owners or authors of works still in copyright.

In 2005 a consortium of copyright holder groups in the USA filed a class action on behalf of North American authors and publishers for copyright infringement. This action has, earlier this year, been settled out of court: the Google Book Settlement.

Though the class action was decided in the USA and by North American representative groups, it nevertheless affects and applies to all authors and publishers worldwide impacted by Google’s activities in the USA.

Terms of the Settlement

Under the terms of the Settlement, Google will continue their scanning and online publishing project but has to:

  • Pay a fixed amount of compensation (damages) to owners of certain works covered by the Settlement that were digitised by Google prior to 5 May 2009, if the owner does not opt out of the Settlement; and
  • Establish a Book Registry (database) to allow owners to claim their works, consent (or otherwise) for Google to make specified commercial uses of their works; and (where a work is used commercially) to assist Google to distribute back to the owner, part of the revenue earned by use of that work (63%).  

Works covered by the Settlement

Not all copyright works scanned or earmarked for future use by Google are included in the Settlement. The Settlement does not cover periodicals or journals, sheet music or pictorial works other than illustrations in children’s books. The Settlement also excludes certain unpublished works (collections of personal papers, diaries, letters) but DOES include dissertations or theses which Google has considered to be 'available to the public' (even if technically unpublished).

Of particular relevance to whether a work will be scanned or put online by Google is whether Google considers the work to be 'available in print' or 'out of print' in USA. Where a work is deemed out of print/unavailable, the Settlement authorises Google to scan and make various online uses of that work (subject to the Terms of Settlement set out above) including

  • Selling online access by subscription to institutions, libraries and users generally in the USA
  • Selling online access to scanned books 
  • Selling advertising space on pages of scanned books
  • Displaying ‘snippets’ and bibliographic information from books and excerpts

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Deadlines

There were strict deadlines for the actions owners (including exclusive licencees) could take as part of the Settlement (see below). However as the settlement was rejected, these deadlines no longer apply. But staff wishing to opt out of the settlement should still contact Google as the settlement may be approved in a modified form at a later date.

  • BY 28 January 2010 – owners of works wishing to opt out of the Settlement must do so before this date.  An owner is automatically ‘in’ the Settlement unless they opt out. Opting out of the Settlement does not stop Google from scanning or making use of your work. Opting out means that you may pursue your own legal case against Google for copyright infringement in the USA.
  • BY 31 March 2011 – if not opted out, owners of works scanned prior to 5 May 2009 must claim their works by this date to receive the damages payment on offer through the Settlement (a ‘one-off’ payment of $US60 per whole book and $US15 per excerpt or ‘insert’ as defined by Google). 
  • BY April 5, 2011 - if not opted out, owners of works who wish to have their works ‘removed’ from the Google books database must claim their works and request removal by this date.

You can find FAQs provided the Settlement administrators (Rust Consulting, Inc.) at http://www.googlebooksettlement.com

For authors who are also members of the Copyright Agency, they have also provided an overview of the Settlement and advice for members on their website.

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What Monash authors need to do:

All Monash authors are advised to go to the Settlement website, register as an author (by creating an account on the website) and search for their works on the Settlement Book Registry .
http://www.googlebooksettlement.com  (select ‘Claim Form’ tab)

Creating an account, and searching and claiming works on the Settlement website is a fairly simple process. (NB Please do not use your Monash username and password when creating your account).

To assist you in your search you may also wish to use these lists (excel file format) which Monash has obtained from the Google Book database, listing works which Google associated with Monash University as publisher. Note however that Google has entered author name data in the format: First name - Middle name - Family name. (Tip: Use the 'Find' function to locate your name)

  • scanned-monash-works-may-09.xls (345KB; This file lists Monash works known to have been digitised as at May 2009; data sorted by department then author)
  • all-monash-works-may-09.xls (NB Large file - 16,215KB; This file lists all works featured in the Settlement database and deemed by Google to have been published by or at Monash (data sorted by digitisation status – highlighted in pink – then by author name)

If your works feature within the Settlement database:

Where your works have been published by external publishers (ie not published or produced here at Monash) the publisher may own or control copyright under an agreement you entered into with them.  So you should contact the publishers as soon as possible to consult with them about the Settlement for those works.

Where your work has been published here at Monash (as part of a departmental series for example) you are likely to be the copyright owner. Please check the terms of any publishing agreements undertaken within the Monash publishing unit or Department relating to the work to verify whether you retain copyright. If you are confident that you retain copyright in your work, then consider the following options:

  1. Whether to opt out of the Settlement before September 4, 2009: by default everyone is ‘in’ the Settlement automatically. You would ‘opt out’ if you intended to pursue your own legal case against Google in the USA. This would entail challenging Google’s rights under US law (‘fair use’).  If you opt out you do not have rights under the terms of the Settlement (ie the right to ‘remove’ your work from Google’s database, the right to receive any compensation payment for works already digitised, or a share of revenue earned for Google’s future intended use of your work). You would need to take legal action to seek such outcomes.  Opting out of the Settlement does not prevent Google from scanning or making use of your work. 
  2. Remaining in the Settlement, you can choose
    1. to do nothing, in which case, Google will be authorised to scan and use your works in accordance with the terms of the Settlement. If you similarly ignore the two deadlines (January 5, 2010 and April 5, 2011) you will not receive any compensation for past use or any share in revenue from future uses by Google, and you relinquish your right to request Google to ‘remove’ your work(s) from their database under the terms of the Settlement.
    2. to take appropriate actions by claiming your work(s) prior to the 2 deadlines to receive payments for Google’s use of your works and to exercise rights (i.e. over how those works are used by Google) under the terms of the Settlement.

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Remaining in the Settlement and managing your works: what to do if your work has already been scanned by Google

Eligibility of the one-off compensation payment

To see if you are eligible for a one-off compensation payment, ascertain whether your work has already been scanned before 5 May 2009: your initial search results from the Settlement website should indicate this and/or you can cross reference or check using the excel file provided above.

If the work has already been scanned, you can claim your work before January 5, 2010, through the Settlement website’s online registry or in writing directly to the Settlement administrators (address at the foot of this page and also available on the Settlement website) to receive the one-off ‘damages’ compensation payment for works already scanned. If you miss this deadline you will miss out on this compensation payment.  However, you can still claim your works anytime after this date, and you can still receive a share of revenue earned from Google’s future uses of your work (‘display’ and ‘non-display’ uses in the terminology of the Settlement) depending on what you allow Google to do with your works when you claim them. And provided you do so before April 5, 2011, you can still request Google to ‘remove’ your works from their database and online ‘display’ uses.  Requests made after April 5, 2011 are not binding on Google.

Claiming your work and authorising Google to make use of your work.

You can, in fact, claim your works at any time. But to be eligible to receive a share of revenue earned from Google’s ongoing or future use of your work you need to have claimed that work within five years of that work earning that revenue for Google and (obviously) you need to have permitted Google to use your work for those ‘display uses’ which generate revenue (ie subscription online access sales and advertising).

For example: a book you authored and own earns revenues for Google from sales or advertising uses during 2011. You need to have claimed that work before the end of 2016 in order to receive your part of those earned revenues.  

When you claim your work, you need to check whether Google has deemed it to be ‘in print/commercially available’ or ‘out of print/unavailable commercially’. Again, the results from your initial search on the Settlement website may indicate whether Google have declared your works to be in or out of print; or you can check / cross reference your search by searching the excel files provided above on this page. 

  • If the work is deemed in print/commercially available, Google is NOT allowed to make any ‘display uses’ (selling access online, adding advertising space, etc) unless you specifically authorise that use as part of your claim. And you can change your authorisation (managing how your works are through the Settlement registry) at any time after you have claimed your work(s).
  • If the work is deemed out of print/unavailable commercially, the Settlement automatically allows Google to make display uses of your work, UNLESS you specifically request Google (in writing) to ‘remove’ that work from some or all of the ‘display uses’. You may decide to authorise Google to make only some display uses of your work and to determine a price for those uses according to the rules set out in the Settlement – attachment A  

For works deemed by Google to be out-of-print, an author/owner may at any time change their mind and turn ‘on’ or ‘off’ the ‘display uses’ (full online access, subscriber sales, advertising, etc) for the work.

If you seek to prevent your work from being scanned at all  - or if you seek to totally ‘remove’ a scanned version of your work from the Google database – you must make that request for ‘removal’ in writing to Google before April 5, 2011. Totally removing your work from the database means Google would not be able to scan it at all; or, if it has already been scanned, Google would have to delete the scanned copy from it’s servers and so would any participating libraries that receive Google’s ‘Library digital  copies’.

If your work has already been scanned and you send a request for removal after that date, Google may retain the scanned copy of your work on it’s servers, using the work for ‘internal purposes’ and for non-display uses (ie only making available the basic bibliographical data online and /or very small ‘snippets’ from the work) but will only refrain from making broader online use of your work if you specifically exclude your work from the ‘display uses’.

For more advice please refer to the FAQs provided the Settlement administrators (Rust Consulting, Inc.) at Google book settlement website http://www.googlebooksettlement.com

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Contact information for the Settlement Administrators

Email: BookSettlement@RustConsulting.com

By Post

Settlement Administrator c/o Rust Consulting, Inc.
PO Box 9364 Minneapolis, MN 55440-9364
UNITED STATES OF AMERICA

News items and articles of interest relating to the Settlement

'Google Books Bibliography’ Charles W. Bailey Jr

'A Guide For the Perplexed Part IV: The Rejection of the Google Book settlement’ Jonathan Band, Library Copyright Alliance and American Library Association Publication March 31 2011 .

'Six Reasons Google Books Failed’ Robert Darnton, New York Review of Books March 28 2011

'A Copyright Expert Who Spoke Up for Academic Authors Offers insights on the Google Books ruling’ Marc Parry, Chronicle of Higher Education July 26 2011

Pamela Samuelson Google Book Settlement: Brilliant but Evil? Cisco Distinguished Lecture, May 13, 2010 (Powerpoint)

Ryan Singel The Fight over the Google of All Libraries: A Wired.com FAQ (Updated) Wired, February 18, 2010

Ryan Singel 'Google Submits Second Proposal for Library of the Future', Wired, November 16, 2009

James, Grimmelmann, GBS: Around the Web , The Laboratorium (blog), November 17, 2009

James, Grimmelmann, Principles and Recommendations for the Google Book Search Settlement, The Laboratorium (blog), Nov 8. 2008

Robert Darnton, 'Google & the Future of Books', New York Review of Books, Vol 56 (2) February 12, 2009

Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al., 'Google & Books: An Exchange', (Letters responding to Darnton), New York Review of Books, Vol 56 (5) March 26, 2009

Rosita Boland, 'Authors tangled in a complex web',The Irish Times, Saturday, July 25, 2009

Steve Kolowich, 'Speak now or forever hold your copyrights!' , Inside Higher Ed (USA), September 4, 2009

 

Send an email inquiry to the University's Copyright Adviser.