SFWA statement on Google/Author’s Guild settlement

Wearing my other hat as SFWA PR flack, I thought interested parties might be interested in this:

CHESTERTOWN, Md. -- The announcement on Oct. 28, 2008, of a potential settlement between Google and the Author’s Guild is significant news for many authors, including no few members of the Science Fiction and Fantasy Writers of America (SFWA). At this time, SFWA has no official standing as an organization in the suit, but it is critical to our mission that we advise our affected members and potential members to the best our ability until more information about the outcome of this suit is known.

The proposed settlement itself is a very detailed document, well over 300 pages. SFWA advises all holders of copyright protected material to visit http://books.google.com, and do a search to determine if their work has been made available via Google Books.

There are several potential problems in this proposed settlement, not the least of which is that copyright owners must “opt-out” of the class, rather than opt-in. Put another way, unless a copyright owner chooses not to participate in the class action suit settlement, they will be presumed as a participant. In addition, the notion that the onus of protecting copyrighted material should fall on those who haven’t made it available in an unauthorized form is outrageous. It should be Google’s responsibility to ensure that every text made available on Google Books is authorized prior to it being made available on the site.

The contract issues are not simple: many works assumed to be in the public domain may not be, additional works may have been made available without regard to whether or not a given publisher has obtained the proper rights from the authors, and even more works may have been put online without the author having been made aware of it.

SFWA’s advice to its members, and to others in the writing community, is to review the information online carefully and consult with an attorney prior to deciding what steps to take next. We will certainly be watching to see how the court responds to the proposed settlement. Be advised that nothing contained in this statement should be construed as legal advice.

Procedurally speaking, here is what affected parties can expect:

First, the most-important piece of information: The “official settlement website” is at http://books.google.com/booksrightsholders. The various parties have committed to keeping this up to date.

Second, there is no obligation to participate in the settlement, retain counsel or pay any filing fee (or any other kind of fee) to either participate in or “opt out” of the settlement. Only a party who chooses to actively oppose the settlement will be subject to any fees of any kind, and then only in certain procedural respects. DO NOT PAY ANY MONEY OR FEE TO ANYONE REGARDING THIS SETTLEMENT, UNLESS YOU HAVE SPECIFICALLY CHOSEN TO HIRE SOMEONE TO REPRESENT YOU.

Third, parties to the settlement will (or, at least, are supposed to) get a formal notice of the settlement and its basic terms. These notices are supposed to be sent between Jan. 5 and Feb. 27, 2009 (Settlement Agreement, Attachment H, paragraphs 16-18). After receipt of the notice, parties will have until May 5, 2009 to formally opt out of the settlement (id., paragraph 15), or as ordered by the court (but not earlier than that date) to formally object to the terms of the settlement while not opting out.

To “opt out” of the settlement means that a particular party agrees that he/she will not claim any benefits from the settlement; conversely, it also means he/she accepts no responsibilities imposed by the settlement, including any acknowledgement that the settlement might bind or prevent a party from suing independently (or taking any other action). Under the Federal Rules of Civil Procedure, a party CANNOT be charged any fee for either option. However, if a given individual is within the class definitions and does not explicitly and formally opt out by following the opt-out procedures in the Notice, that person WILL be included in the class and bound by the settlement.

One last note: This settlement is not set in stone. The judge must approve it as fair and appropriate. He may order modifications--sometimes quite substantial--or reject it entirely. His decision to do so will depend, at least in part, on what any objectors to the settlement have to say in their formal filings. This is NOT the time or place to send an outraged note. Objecting to a proposed class settlement is a highly technical matter and requires the advice of experienced counsel--please seek that advice prior to taking any action.

As noted above, SFWA will continue to monitor this matter and as additional information becomes available, we will share that with our membership.

Sincerely,

Russell Davis
President, Science Fiction & Fantasy Writers of America, Inc. (SFWA)