13 August 2009

 Google Book Search Settlement – opting out

The US court overseeing the Google Book Search Copyright Settlement extended the Opt-Out Deadline to September 4, 2009 (the “Extended Opt-Out Deadline”). This is the new date by which class members (authors and publishers) must decide whether to remain in the Settlement, object to the Settlement, or opt out of the Settlement.   The settlement affects any book published before 5^th January 2009 in any country that is part of the Berne Convention (ie including New Zealand) whether Google has already digitized that book or not. 

Opting Out

If you opt out of the Settlement, the terms of the Settlement will not apply to you. This means that you are retaining all rights to bring a legal action against Google, for digitizing and displaying your books and/or Inserts, and against the Participating Libraries, if desired. If you opt out of the Settlement, you will not be eligible for a Cash Payment or to participate in any of the revenue models under the Settlement.  The Settlement's restrictions or obligations on Google or the Participating Libraries will not apply to your books or Inserts – it also means that the Settlement neither authorizes Google to make certain uses of these books and Inserts nor does it prohibit Google from doing so.  

By checking a box on the opt out page, you can request that the Settlement Administrator ask Google not to digitize (or, if already digitized, not to display any contents from) the books or Inserts identified in the opt out form.  Google has no obligation under the Settlement to comply with such request, but it has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests, if the books or Inserts are individually specified, are in copyright, and the author or publisher has a valid and unchallenged copyright interest in their books and Inserts.

Alternatively, if you would like Google to contact you regarding Google’s use of your books or Inserts other than through the Settlement, you can check a different box on the opt out page.

You may opt out of the Settlement by: 

Going online on or before September 4, 2009 at http://www.googlebooksettlement.com , and following the instructions to opt out; or

Sending written notice by First-Class Mail, postage prepaid, postmarked on or before September 4, 2009 to the Settlement Administrator, at:

Google Book Search Settlement Administrator
c/o Rust Consulting
PO Box 9364
Minneapolis, MN 55440-9364

The postmark will determine the time of mailing.

You need not state your reason for opting out. However, your opt-out request must be signed or, if submitted online, completed by an authorized person; it must state which Sub-Class you wish to opt out of (either the Author Sub-Class or Publisher Sub-Class); and it must provide your name and address or, if you are an author’s agent, must provide the name of the Author Sub-Class member on whose behalf you are acting (i.e., the person whose name appears as the author of the Book or Insert) and any pseudonym used to author the Books, if applicable. Although it is not a requirement to opt out, you should include in your opt out notice the title, author, publisher and ISBN (if the Book has an ISBN) of all of your Books and Inserts so that Google can identify your Books and Inserts.

Objecting

If you wish to object to the Settlement, you must, on or before September 4, 2009, file with the Court a statement of your objection and the grounds for your objection, at the following address:

Office of the Clerk, J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007

You must also send a copy of your objection by email to Counsel for the Author Sub-Class, Counsel for the Publisher Sub-Class and Counsel for Google.

You may object to the Settlement if you remain in the Settlement but disagree with some aspect of the Settlement, but you cannot both object and opt out. Only Settlement Class members may object to the Settlement, and people who have opted out are no longer Settlement Class members.

An objection allows your views to be heard at the fairness hearing in the US court now scheduled for October 7, 2009. In contrast, opting out means that you are no longer part of the Settlement and that you do not want to be subject to the Settlement’s terms and conditions. Once you opt out, you lose any right to object to the Settlement, because the Settlement will no longer affect you.

Advantages of Opting Out

 
The digital world is expanding at an amazing rate on a daily basis.  No one knows where it will lead and what opportunities could come out of it.  We believe that the creators could potentially be in a stronger position as the need for conventional publishing models diminishes.  It could therefore be disadvantageous to sign away your electronic/digital rights for approximately US$60 plus an indeterminate share of use revenue, as they could be worth considerably more than that in the future.

Whilst Google does not have exclusive digital rights to your work through this settlement, it is easily argued that they are as good as exclusive (and this is why regulators in the US and elsewhere are investigating the settlement).  In some cases, the fact that Google has already digitized your book and has it on display and within the registry system may mean that a US publisher will be less interested.  Others argue that Google may create a market for your writing that you never would have had access to before.  The answer is that no-one really knows but you do ned to consider whether the potentially small revenue you might receive out of the settlement is worth opting in or, on the other hand, whether the uncertainty means that you should opt out and see what happens.

Disadvantages of Opting Out

By opting out you are not entitled to any payment under the Settlement.  You can request Google not to digitize your work, but Google is not obliged to agree to that request.  Should Google digitize your work, you would then have to take action

against Google - which could prove expensive since Google claims that what it is doing is not infringement because of the fair use exception in the US.