The Google Book Search litigation and pending settlement has been increasingly in the news as the date of the court’s fairness hearing draws near. Friday September 4, 2009, was the deadline for class members to file comments to the settlement (for or against) but this has been extended to 10:00 a.m. EDT on Tuesday, September 8, 2009. A member of the public who is not a member of the class may also file as an amicus curiae. The deadline to withdraw from the class is still Friday September 4, 2009, and the hearing will be on October 7, 2009, after which the court will decide whether to accept or reject the settlement.

What is the Google Book Search?

In 2004, Google announced that it had entered into agreements with several libraries to digitize books, including books protected by U.S. copyright law, in those libraries’ collections. Google plans to digitize millions of books to create a searchable, virtual card catalog of all books in all languages. So far it has created electronic, searchable copies of over 10 million books.

In 2005, authors and publishers brought a class action lawsuit against Google, claiming that its digitization without permission had infringed their copyrights. In response Google argued that its digitization of the books and display of snippets, or a few lines, of the books is permitted under the U.S. copyright law’s doctrine of “fair use.” Instead of proceeding in what promised to be a protracted legal dispute, the parties negotiated a settlement.

Who Will be Impacted by the Settlement?

If it is approved, anyone who is a member of the class and does not withdraw from the class will be impacted by the settlement. The class consists of all persons and entities that, as of January 5, 2009, own a U.S. copyright interest in one or more books or inserts that are “implicated by a use” authorized by the settlement.

To be a member of the class, first you must own a “U.S. copyright interest” (i.e., you must own, or have an exclusive license in, a copyright protected by United States copyright law and registered with the U.S. Copyright Office prior to January 5, 2009). For example, if you are the author of a book you own the U.S. copyright in your book, unless you have completely assigned all of your copyright interests to another person or entity, or unless you wrote the book as a work for hire. You also own a U.S. copyright in a book if you have the exclusive right to publish that book in the United States. Several persons may have U.S. copyright interests in the same book, such as co-authors, an author and a publisher, and the heirs of an author.

Second, your copyright interest must be “implicated by a use” covered by the settlement. Such uses would include Google’s reproduction or display of any content from a book. (For example, if you own only the audio or performing rights to a book, your copyright interest would not be “implicated by a use” covered by the settlement and you would not be a member of the settlement class.)

What are My Options Under the Settlement?

If you are a member of the class, you will stay “in” the settlement as long as you do not opt out. If the settlement is approved, then you will have the following choices:

  • Claim your books and inserts at http://www.googlebooksettlement.com;
  • Claim a payment for any books and inserts that Google digitized on or before May 5, 2009;
  • Request that one or more of your books be removed from the Google book search database or that one or more of your books not be digitized;
  • Exclude or include one or more of your books in various display uses under the settlement; or
  • Exclude or include one or more of your inserts in all display uses under the settlement.

If you stay in the settlement you may also object to some or all terms of the settlement. (For further information on how to submit an objection to the settlement see Question 24 at: http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en-us).

You may also opt out of the settlement class by sending a written request to be removed from the settlement. If you opt out of the settlement, you will not receive any of the settlement’s benefits, and you will not be bound by any of its terms, including the release of claims against Google. (For further information on opting out see Question 20 at: http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en-us).

If you do nothing, you will be bound by the settlement and will receive a cash payment under the settlement and participate in future revenue from Google’s use of your books once you have “claimed” your books (see above). Paradoxically, although staying in the settlement means giving up any copyright infringement claims you might have against Google for digitizing your books without your permission, only by staying in the settlement can you file comments on it with the court and, if the settlement is approved, have the right to withdraw your books from the Google Book Search without going to the trouble and expense of suing Google.

What are the Key Deadlines?

The federal court overseeing the settlement extended the opt-out deadline to September 4, 2009. This is the date by which class members must decide whether to remain in the settlement class or opt out and is also the deadline for class members to file comments to the settlement agreement.

The final fairness hearing will be held on October 7, 2009, at 10:00 a.m. in Courtroom 11A of the United States District Court for the Southern District of New York, United States Courthouse, located at 500 Pearl Street, New York, New York 10007. In this hearing the court will hear arguments concerning whether or not the settlement is fair to the class members and will decide whether to grant final approval of the settlement. It has also agreed to hear from the U.S. Department of Justice concerning potential antitrust issues that may be raised by the settlement.

Does the Settlement Apply to Libraries?

Several categories of libraries can participate in the settlement, based on their level of participation in the Google Book Search: Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries and Other Libraries.

Fully Participating Libraries are libraries that are allowing Google to digitize books in their collections and to which Google is providing a digital copy of those books. The Settlement Agreement provides that Fully Participating Libraries will be able to make certain uses of their digital copies, although they will be obligated to take strict security measures to prevent unauthorized access of their digital copies. All other participating libraries will not receive digital copies.

How Can I Find Out More About the Settlement and Exercising My Options?

The Settlement Agreement may be viewed at any time at http://www.googlebooksettlement.com.

You can also visit the websites for the Authors Guild at www.authorsguild.org or the Association of American Publishers at www.publishers.org for information about the settlement. In addition, Google’s FAQs on the settlement can be found at http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en-us.