On Friday the 13th (11/13/09), a revision to the Google Book
Settlement (GBS) was filed in Federal Court, bringing Google a step
closer to achieving its vision of indexing and providing the
literary history of the world to the world. The GBS Revision seems
designed primarily to appease the U.S. Justice Department, which has
expressed anti-trust concerns, as well as objections by foreign
countries, such as France and Germany, which have raised
international political pressure relating to copyright laws and
treaties because of GBS.

The GBS Revision removes many foreign publications from the class
action, drops a “most favored nation” provision that provided Google
with at least as good a deal as any competitor in the future,
assigns a Fiduciary to watch over rights, and changes how monies
received for “orphaned works” will be used.

The revised settlement agreement is subject to the judgment of
Federal Judge Chin. The U.S. Justice Department will likely give a
second opinion early in 2010. And while many people support the goal
of making books available that were previously unavailable, the
process is clearly ongoing with many players on the stage.

Here is a layman’s perspective on a few of the highlights of the GBS
Revision, mostly taken from Google’s summary of the revision:

The Book Rights Registry (BBR) will add an independent,
court-appointed Fiduciary to control unclaimed funds for “orphan
works”, including books and inserts. The Fiduciary will be
responsible for representing the interests of rightsholders. This
seems intended to address what the U.S. Justice Department saw as a
conflict of interest in which the BBR searches for the owners of
orphaned works, but if they don’t find the owners, gets to keep the
money (to offset operating expenses) or pay it to other rights
holders of unrelated works. In the GBS Revision, after 10 years (up
from 5 yrs), unclaimed monies will go to literacy-based charities,
government entities (ie, state attorney generals) or “fully
participating” libraries. The Fiduciary can spend up to 25% of that
money trying to find the owner of each unclaimed creative work
covered by the settlement.

Foreign countries, such as France and Germany, and publishers in
those countries have voiced loud objections to GBS. This prompted
the European Union to consider legislation to counter the effects of
the Google Book Settlement. The GBS Revision drops most authored
works from countries that do not “share a common legal heritage and
similar book industry practices”. Books by authors from the United
Kingdom, Canada and Australia remain in the deal, as well as any
books registered with the U.S. Copyright Office.

Any book retailer (ie, Amazon, Barnes & Noble, local bookstores,
etc.) will be able to sell online access to consumers of unclaimed
and out-of-print books covered by the settlement. For book sales by
Google, a “black box” algorithm will set pricing based on dynamic
industry comparisons. Rightsholders will still receive 63% of the
revenue while retailers will keep the majority of the remaining 37%.

The “Most Favored Nation” clause is removed that made the Book
Rights Registry offer the same terms to Google before licensing
unclaimed works to other parties.

And, additional revenue models (for which BBR can license works) are
now limited to Print-On-Demand, File Downloads and Consumer
Subscriptions.

Photography continues to be excluded from this class action in most
instances.

While Google has taken definitive steps to make the Settlement more
acceptable, it remains to be seen if Judge Chin will favor the GBS
Revisions or the arguments of those who continue to oppose GBS, such
as the potential competitors that created the Open Book Alliance,
who described the GBS Revision as a “sleight of hand, surgical nip
and tuck”.

There is a recorded press conference-style call that included
Richard Sarnoff, Chairman of the American Association of Publishers,
Paul Aiken, the Executive Director of the Authors Guild, and Daniel
Clancy, who it the Engineering Director for Google Books. You can
register to hear/replay the discussion by calling (888) 203-1112 or
(719) 457-0820 and entering the code “3915040”.

And, Google has issued three documents on the proposed Revision to
the Google Book Settlement (GBS) as follows:

Revised GBS Agreement

Summary Of GBS Revision

FAQ’s About GBS Revision

Some Other Resources About The Google Book Settlement Revision:

New York Times summary of the GBS Revision

The C-Registry Copyright Forum

The Laboratorium, organized by lawyer James Grimmelman, has detailed legal analysis of the GBS Revisions that supplements his extensive coverage of GBS to date

Randy Taylor
www.RandyTaylor.com
www.C-Registry.us