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.