SFWA update on proposed Google Books/Author’s Guild settlement

CHESTERTOWN, Md. -- The Science Fiction & Fantasy Writers of America (SFWA) – represented by President Russell Davis and Past President Michael Capobianco (also the SFWA representative to the Author’s Coalition) – participated in a conference call Dec. 6 led by Paul Aiken, executive director of the Author’s Guild, along with a number of other writers organizations.

The purpose of this call was to review some of the specific highlights from the recently proposed settlement and to answer some of the initial questions many writers have about the specifics.

"As part of our continuing efforts to keep interested members of our organization and the general public informed, I wanted to share some of the key points covered in the call," said Davis.

First and foremost, this settlement does not cover anything published after Jan. 9, 2009. While the intention of the settlement is to establish procedures, along with the Book Rights Registry, which could be applied to future works, there is no clear guarantee that Google or any of the other parties to the settlement will abide by its terms for works published after that date. What the settlement appears to do is authorize Google Books to continue to digitize and add works to their database after that date (Article III) on a non-exclusive basis from any and all sources.

Second, a point of clarification. The settlement specifies that works that are deemed in print are not automatically included in the settlement, and rights owners for those works must opt-in. Works that are deemed out of print are automatically included, and rights owners for those works must opt-out. The procedures for determining if a given work is deemed in print or out of print appear to be fairly complex and based on information from a variety of sources, including market availability.

Third, the Book Rights Registry that would be established by the proposed settlement and be in place to administer its terms, is intended to be run by a board composed of 50 percent author representatives and 50 percent publisher representatives. It will be established as a non-profit company under New York, not federal, law.

Finally, the settlement proposes a variety of licenses and income splits, depending upon the specific user of the work in question, such as a university, an individual consumer or a library. Fees are varied, and would be sent – depending on the specific work and rights – to authors and publishers directly. Excerpts, poetry, and similar types of work would be treated as inserts under the settlement and rights holders would be paid a small flat fee for the use.

Obviously, this statement does not provide the level of detail available in the original settlement documents. Additional information can be accessed at www.googlebooksettlement.com. As previously noted, we advise any affected authors to consult with their own counsel in this matter and to review the terms of the proposed settlement with care. The settlement has not yet been approved by the judge in this case, and may be accepted, altered or rejected by the court.

At this time, SFWA’s initial and primary concern remains: this settlement reverses the long, legal standard of requiring that rights to written work be obtained prior to their publication in any form, and forces authors to opt-out if they wish to protect their rights.

SFWA will continue to monitor the progress of the settlement and consult with our counsel as to the ramifications for our members and the writing community in general.

About SFWA

Founded in 1965 by the late Damon Knight, Science Fiction and Fantasy Writers of America brings together the most successful and daring writers of speculative fiction throughout the world.

Since its inception, SFWA® has grown in numbers and influence until it is now widely recognized as one of the most effective non-profit writers' organizations in existence, boasting a membership of approximately 1,500 science fiction and fantasy writers as well as artists, editors and allied professionals. Each year the organization presents the prestigious Nebula Awards® for the year’s best literary and dramatic works of speculative fiction.

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)