Google Books settlement sets geographic, business limits

Revised settlement allows the scanning of out-of-print works from only English-speaking countries, restricts future business for Google, and gives copyright holders more rights.

A revised settlement filed late Friday over Google's right to scan digital books places additional limits on the company.

The settlement allows out-of-print books from only English-speaking countries to be scanned, restricts the ways that Google can make money from scanning and digitizing out-of-print books, and requires a registry to seek out copyright holders who do not come forward.

The amended settlement comes after Judge Denny Chin of the U.S. District Court for the Southern District of New York granted on Monday a deadline extension to the parties to try to resolve issues that the U.S. Department of Justice had with the original October 2008 settlement.

The settlement now applies only to out-of-print books registered with the U.S. Copyright office or published in the U.K., Australia, or Canada--countries that have a common legal heritage and similar book industry practices--according to the FAQ on the revised settlement.

Each of those countries will have an author and a publisher seat on a Book Rights Registry board, a nonprofit that will be responsible for paying authors and publishers.

The Book Rights Registry will be required to search for copyright holders who have not yet come forward and to hold revenue on their behalf, under the revised settlement. An independent fiduciary approved by the court will make decisions regarding unclaimed works.

Readers will be able to preview and purchase books, institutions can buy subscriptions, and libraries will have free access at designated terminals. The revised settlement limits Google's future business models from the works to individual subscriptions, print-on-demand, and digital downloads. The company will need to get approval from the registry's board and provide notice to all claiming copyright holders before implementing any of the business models.

Copyright holders can now choose to make their books available for free or allow reuse under Creative Commons, as well have the option to modify or remove restrictions placed on Google's display of their books, such as limits on the number of pages that users can print.

The settlement still allows any bookstore to sell online access to out-of-print books covered by the settlement, including unclaimed books. Copyright holders will still receive 63 percent of such revenue, while retailers will keep the majority of the remaining 37 percent.

A portion of the revenue generated from unclaimed works may be used to locate copyright holders after five years and will not be used for the registry's general operations or redistributed to other copyright holders as previously planned. After 10 years, the registry may ask the court to distribute these funds to nonprofits.

The Book Rights Registry will now hold unclaimed funds for 10 years, instead of five. After that time, the funds will go to nonprofits in the English speaking countries.

The Registry also is prohibited from sharing pricing information with anyone but the book's copyright holder, according to settlement. Authors and publishers will have until March 31, 2011, to make claims for the $60 to $300 per-book-digitization payments, and have until March 9, 2012, to remove works from Google's database.

The revised settlement makes it clear that Google will not display any content by default from works that are for sale as new internationally, which are considered commercially available. In addition, it includes language that specifies that Google will not share any private information with the registry without valid legal process.

Authors and publishers from outside of the covered countries can still enter into promotional and revenue-generating programs through Google's Partner Program.

"The changes we've made in our amended agreement address many of the concerns we've heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement: opening access to millions of books while providing rightsholders with ways to sell and control their work online," Dan Clancy, Google Books engineering director, said in a statement.

"We're disappointed that we won't be able to provide access to as many books from as many countries through the settlement as a result of our modifications, but we look forward to continuing to work with rightsholders from around the world to fulfill our longstanding mission of increasing access to all the world's books," Clancy said.

According to Google's FAQ, the court will create a timeline for the revised settlement, "which will likely include a notice period, an objection period, and a final fairness hearing in early 2010."

Google is seeking rights to scan and display out-of-print books as part of a larger effort to create the modern day equivalent to the Library of Alexandria. Opponents argue that the settlement puts too much power in the hands of one company.

In September, the Justice Department voiced objections to the proposed settlement on antitrust grounds. The agency was bothered by the fact that Google and the Books Rights Registry, a nonprofit that will pay authors, would have sole control over the pricing of institutional subscriptions to the digital library. The DOJ also raised questions about whether the proposed settlement complied with Rule 23 of the Federal Rule of Civil Procedure, as well as copyright law in general.

Google first announced plans in 2003 to make books searchable and has hit snags with its efforts since, being sued by authors and facing opposition internationally .

 

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