Tuesday, October 28, 2008

$125 Million is a Lot to Pay for Fair Use

Google has settled (pending court approval) the class-action lawsuit brought by the Authors Guild and the Association of American Publishers arising out of the Google Library Project. You can review the 323-page settlement filing, as well as other documents related to the lawsuit, here.

One very interesting aspect of the settlement is its establishment of a not-for-profit Registry that will administer the terms of the settlement going forward and, according to the agreement: "own and maintain a rights information database for Books;" "attempt to locate Rightsholders;" "receive payments from Google . . . and distribute these;" and "assist in the resolution of disputes between Rightsholders." Depending on how this is implemented, the Registry could serve as a model for other media types looking for acceptable ways for content holders and content users to manage and agree on the status of media content rights.

Along those lines, the settlement also includes a "safe harbor" procedure that Google can follow to determine whether a particular book is in the public domain and exempt from payment under the settlement. It requires "at least two people" to consider for each book its copyright date, publication place, copyright notice, any copyright registration and renewal, as well as whether the book was contemporaneously published abroad or is a government work. Google must notify the Registry of any work that it determines is in the public domain.

The agreement also sets up a payment schedule for class member works that Google includes in the Google Library Project of $60 per "Principal Work," $15 per "Entire Insert," and $5 per "Partial Insert." To fund the Registry, Google's initial deposit will be $45 million, plus another $34.5 million for "Administrative Costs." In addition, Google agrees to pay "a total amount not to exceed" $30 million for attorneys' fees (and I have a feeling that the attorneys' fees are likely to come in pretty darned close to that $30 million cap.) So that's a tidy $109.5 million total that Google is laying out for this settlement. The press release says Google's total payments will be on the order of $125 million, so there is another $15.5 mil that I haven't yet picked up.

The settlement agreement's bulk means that it make take some time to digest its contents. Like a free buffet at a vendor's CLE presentation, this one may take me a while to work through.


  1. 'Note that "download" is not among the permitted activities, so consumers will need an active Internet connection to read what they purchase.'

    In actual fact, the data has to be downloaded in order to read it. So every half-competent user in the world will arrange to save copies of the already-downloaded data.

    That's known as a "restriction that's not technologically possible". Like the DVD region coding.

  2. It seems that the publishers are rather stupid. They keep trying to do the impossible.

    Within, oh, a couple of months of the program coming up, 'screen scrapers' will allow you to download an entire book from Google as soon as you purchase it. The business will sell very few copies.... until the screen scrapers hit the Internet. At that point, Google will start selling *lots* of copies.

    That's how it works.