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Google Book settlement: The new version


Google, the Authors Guild and the Association of American Publishers submited a newer version of their settlement (Amended Settlement Agreement, ASA). The Notice of Motion for Preliminary Approval of Amended Settlement Agreement provides a good overview over the modifications. The most important points are:
  • A work is now included in the settlement only if, by January 5, 2009, it has been registered with the United States Copyright Office, or published in Canada, the United Kingdom, or Australia. This addresses concerns expressed e.g. by the French and German government.
  • As in the original Settlement Agreement, the ASA provides that Google may make Display Uses of Books that are Commercially Available only after the Rightsholders affirmatively authorize Google to do so. Although Google is authorized by default to make Display Uses of Books that are not Commercially Available, the Rightsholder can turn those uses off at any time.
    The ASA clarifies the definition of “Commercially Available.” Under the amended definition, a Book is categorized as Commercially Available, and thus will not be displayed without explicit permission, if new copies are available for purchase by consumers in the United States, Canada, the United Kingdom, or Australia from sellers anywhere in the world.
  • Google has agreed to give the Book Rights Registry (the “Registry”) sixty days’ notice after Google classifies a Book as not Commercially Available before it makes any Display Uses of that Book.
  • The parties deleted Section 3.8(a), which provided “Most Favored Nation” status to Google.
  • The proposed Final Judgment and Order of Dismissal provides that the Court’s approval of the settlement does not provide any immunity from the antitrust laws, such as via the Noerr-Pennington Doctrine. This might enable the District Judge and the DOJ to not address the antitrust concerns at this point, but instead wait how the market develops and act later (see Picker, Accessing Competition Issues in the Amended Google Book Search Settlement).
  • The ASA now provides that the Registry’s Charter will ensure that an independent fiduciary will be delegated the responsibility to represent the interests of the Rightsholders of unclaimed Books and Inserts with respect to the exploitation of their works under the ASA.
  • The ASA also changes the provisions relating to the use and disposition of funds generated by a Book whose Rightsholder has not made a claim. Now, the Registry will hold these funds, for the benefit of that Rightsholder, for at least ten years (extended from five years under the original Settlement Agreement). ASA § 6.3(a)(i)(1). Beginning five years after the Effective Date, subject to the approval of the fiduciary, the Registry may use 25% of all funds earned in any one year that have remained unclaimed for at least five years for the sole purpose of locating the Rightsholders of unclaimed works. ASA § 6.2(a)(i)(2).
 The Registry still has not the power to grant a similar license to any other company that might want to make the same kinds of uses that Google will be allowed to make under the settlement.
U.S. District Judge Denny Chin granted preliminary approval for the agreement and ordered that groups will have until Jan. 28 to file objections with the court. The fairness hearing will  be held on Feb. 18, 2010.

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