A funny thing happened while I was trying to figure out the revised Google Books settlement. My rights disappeared. Readers of my postings may recall that I struggled, as an author of books and book chapters, with whether to opt out of the settlement or to stay in, despite misgivings. I chose to stay in. A few months ago I laboriously reviewed my old agreements with publishers, striving to determine what rights I still held, and I filed my claims accordingly.
Most of the materials I claimed were “Inserts” (defined here). The settlement provides payouts to rightsholders in whole books and in book chapters or other “Inserts.” I have contributed chapters to several books. By filing my claims, I became a player in the wild world of the Google settlement.
Then came Friday the 13th. On November 13, 2009 the parties issued their revised settlement (GBS 2.0). Much has been written about new and old issues in the settlement, from orphan works to privacy. Perhaps the most salient change is the diminished definition of “Book,” now generally limited to books from the U.S., U.K., Canada, and Australia. Sneaking by with little attention is the revised definition of “Insert.”
Under the original settlement plan (GBS 1.0), an Insert was part of the settlement class if it were “covered by a registration with the United States Copyright Office.” Who would think that such a simple statement could be so ambiguous? I have contributed chapters to various books, and a few of those books were registered with the Copyright Office. I took that to mean my chapters (or Inserts) were “covered.” Whether I was right or wrong, GBS 2.0 undercut my claims.
Jonathan Band has written an extremely helpful “Guide for the Perplexed” series, explaining clearly many details of the settlement. About “Inserts,” he notes the original “covered” language and writes that GBS 2.0 “clarifies this phrase by adding that the insert had to be registered as a stand-alone work or as part of another registered work from which it was excerpted. In other words, if A included in his book an essay by B, and A filed a copyright registration for his book, B’s essay is not an insert under the settlement unless B had registered the essay on a stand-alone basis or as part of B’s own book of essays” (citation omitted).
I did not separately register my book chapters (darn). In most cases, my chapters were original contributions to the books and were not excerpted from “another registered work” such as “another” book (darn again). As a result, many claims for chapters under the terms of GBS 1.0 may no longer be valid. I am not seeing this point on any lists of changes brought about by GBS 2.0. Jonathan Band tells me that the parties would probably say it is not a change at all; GBS 1.0 was being misconstrued and GBS 2.0 was only a clarification. My colleague Professor Jane Ginsburg tells me that the case of Morris v. Business Concepts may in any event limit the jurisdictional reach of a registration of the collective work.
Whether the change is substantive or only clarification, it is a big deal for me and surely for multitudes of authors of book chapters. Last summer I chose not to opt out of the settlement for a variety of reasons. Now that I appear to have fewer claims, have I changed my mind? I am still pondering that question. If I have fewer claims, does it even matter if I opt out or not?
If my book chapters are not officially “Inserts,” what are they? Are they within the settlement? Jonathan Band’s paper includes a thoughtful Note 12, in which he says that such chapters may still be “removed” from the database on request, because the rightsholder is not subject to the settlement. If under my publication agreement, I hold the legal rights in a book chapter, can I pull the chapter and leave a gap in the online book? Can I go back to my publisher and renegotiate for a slice of the money from the settlement? Does the publisher have the duty to let Google know that it lacks rights for some or all chapters in a book?
I am still working on the answers, but the language of “Inserts” has created a conundrum. The new language has defined more clearly the scope of settlement claimants, yet ironically the language has left owners of “Inserts” with more legal rights outside the settlement. The result may well be withdrawn chapters and other gaps in Google Books, and may not be in the best interests of creating the most robust research database.
These are my opinions, and I reserve the right to keep learning. I welcome any thoughts, and I look forward to following the issues. Please send your thoughts to me at kcrews[at]columbia.edu.
Kenneth Crews
December 17, 2009
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