As the Google Books settlement continues to evolve, Jonathan Band is right there with it, summarizing its provisions for the public. He’s penned a third entry in his Guide for the Perplexed series (Part I dealt with the original settlement and Part II with the revised library agreement with Michigan), this one detailing the settlement amendments. It’s a quick, very helpful overview of what’s changed.

James, Band’s interpretation of the situation with inserts is:

“The ASA clarifies this phrase by adding that the insert had to be registered as a standalone work or as part of another registered work from which it was excerpted.(ASA 1.75) 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. If B’s essay is not an insert, B is not entitled to separate compensation and Google does not have to honor his request to exclude his essay from displays of the book.”

Do you agree with this? What does it mean if all unregistered short works (the vast majority of short stories published in anthologies, frex) are not considered to be inserts?

That’s correct. These non-Insert inserts (ones that have not been registered with the Copyright Office) are not covered by the settlement. They have no right in the settlement to compensation or to insist on Exclusion. On the other hand, since they’re out of the settlement, they don’t give up the right to sue Google for infringement.

But note also that the registration requirement only applies to United States works; so inserts that are UK, Canadian, or Australian are included as Inserts, regardless of registration.

An unregistered insert can appear in a registered book which fits the settlement’s definition of book.

So are these unregistered inserts out of the settlement, or are they treated as a part of the books they’re in without independent display controls or compensation?

My understanding was that they are out of the settlement, because the copyright owners of the insert are not owners of a copyright interest in a Book. But I’m looking at the definitions again, and the issue is … obscure.

The status of inserts, specifically, for example short stories or poems in an anthology, shouldn’t be “obscure” at this late date, and the fact that it is for us experts, confirms that the GBS is still not ripe for class certification, or fairness hearing, and that the greedy geniuses who drafted it do not deserve the $30 million in fees they seek to be awarded. Usually, anthologies or short story collections contain earlier published short stories, essays or poems, which were earlier and separately copyrighted, and this is usually noted in the permissions pages of the anthologies. I think that in this case, the rights holder of the “insert” must decide to opt out or claim the insert. In any case, these are nightmare administration scenarios for the BRR and would seriously erode the value of Google Book for such anthologies- in cases where several of the included short stories, essays or poems opted out for e publishing so that google book search and preview and e publishing are only allowed to offer a fragment of the entire published, scanned work. The data base scanned work would be eviscerated, a result which should mortify the naive university librarians who set this whole misguided endeavor in motion years ago.

While on the subject of inserts, so far as I can see there is nothing in the Author-Publisher Procedures or anywhere else in the agreement which says who is to receive payment for them, or how, if at all, that payment is to be split.

Not that much payment is envisaged: a derisory one-off payment from the settlement fund ($15-$75) and one-off inclusion fee for use in the Institutional Subscription Database ($50) is the most that nearly all anthologized poems or short stories will attract,* and for that Google and the editor and the editor’s publisher get a perpetual right to use those works and make money out of them.

* A much-quoted work included in the Institutional Subscription Database may attract a maximum of $500. And there is an odd provision for rights-holders of inserts whose contracts with the author of the book specifically cover database use to be paid more if the contract requires it. (Attachment A)

Bizarre, that, that they can set out to appropriate rights your contract never accorded the author/editor, and pay the editor, not you, for the use of your work, but in the rare event that a contract specifies database use they make a point of respecting, or partly respecting, its terms.

Now here is an interesting thing.

Registered rights-holders of inserts do not have the right under the GBS agreement to remove their works: only books can be removed. They do have rights to exclusion in 3.5:

Any Rightsholder of a Book at any time may direct Google or the Registry to exclude his, her or its Book, or any portion thereof, from any one or more, or all, Display Uses, Revenue Models or the Book Annotation sharing feature … and any Rightsholder of an Insert at any time may direct that his, her or its Insert, or any portion thereof, be excluded from all (but not less than all) Display Uses.

Now some weeks ago I read this as meaning that rights-holders of inserts could not withhold their work from sale (revenue models) and James read it the same way (see comments to this section on The Public Index).

But having just checked up the special definitions in this slippery heap of verbiage I find that ‘Display Uses’ include ‘Access Uses’ and ‘Revenue Models’ are based on ‘Access Uses’ (apart from advertising uses, which depend on previews, which is a ‘Display Use’). (Amended GBS agreement, 1.1; 1.52; 1.133; 3.14).

So it is open to authors of inserts to withhold their works completely from any kind of public use or sale, provided they are prepared to forego the one-off $50 fee for inclusion in the Institutional Subscription Database (the only fee on offer for inserts apart from the one-off payment from the settlement fund).

This is, at least, better than I previously feared. Any poet or short-story writer who owns valuable literary properties keeps the right not to have them sold over their heads because of old expired permissions issued in the past to editors of print anthologies.

But yes, it will be a swiss-cheese database, most likely; certainly if authors are savvy. It will be a great heap of the work of forgotten authors. I have spent a lot of my life in library book stacks. I know that most (not all) of those really cobwebby old books are like that for a reason!

This does not mean that the GBS isn’t still a great headache, injustice and potential trap for poets, short story writers and essayists.

For one thing they will have to find their works (in some cases a very large number of works) in Google’s (reportedly) ramshackle database. Could be weeks of work for some of them, for what may still be quite trivial sums from the settlement fund. (And UK authors will lose 30% in US tax, before being taxed again at home.)

Secondly, if the GBS agreement provides for the authors of inserts to exclude their works from all uses other than indexing and research, it could just as well provide for them to remove them.

Finally, the rights-holder of a book can challenge the exclusion of an insert in that book ‘under law or contract rights’: presumably, under the law of fair use, or on the basis of a contract still in force. Sounds fair enough, at first sight, except: the dispute will be heard under the arbitration procedures laid down in the settlement (on which see Edward Hasbrouck and Jane Litte).

Looking quickly at the revised definitions, it appears to me that, in the ASA, childrens book illustrations — which were “inserts” in the original agreement — are now not inserts. An anthology of essays might be turned into Swiss-cheese under the ASA, but many childrens books without their illustrations would be nothing more than a thin spread of watered down Velveeta.

Am I getting this right? Because if I am, picture book authors and graphic novel authors are being treated very differently than other writers in the class, because the content of their books is conveyed through a mixture of words and images and the interplay between those words and images.

I’m not sure what this different treatment would actually mean to these writers. On one hand, readers are more likely to look for hard copies of their books, because the versions in GBS (assuming GBS doesn’t digitize the llustrations) would be so inadequate. On the other hand, these authors are not as likely to get any payment from their books being in GBS; moreover childrens book and graphic novel authors with books that are out of print but in copyright won’t get the benefits from having their books in GBS that authors of all-text books will get.

Aside from the impact on the authors, this would be yet another reason why the settlement will not benefit children. Google makes quite a bit of noise about how much the settlement will do to bring books to underprivileged communities (e.g., schools on Indian reservations) but even the first version of the settlement agreement showed no real interest in serving disadvantaged children. The ASA makes Google seem more hypocritical.

Moreover, it looks more and more like this case is turning into law-making-via-settlement-agreement. Given that, it seems particularly important that the public’s interest in the education of children should somehow be considered, whatever the Federal Rules say.

I would really appreciate any comments you all have on this, because I’m a member of an organization of childrens book authors & illustrators and (being one of two lawyers in the group) have gotten the job of explaining what the settlement means to them. Earlier in the year, I wrote an article for our newsletter, but I need to do an update covering recent events.

Thanks very much.

Jerome Garchik is right that, “The status of inserts, specifically, for example short stories or poems in an anthology, shouldn’t be “obscure” at this late date.”

But that’s far from the only significant aspect of how the settlement will be interpreted that remains “obscure”.

Here are some of the most important open questions:

(1) Which rightsholder, or the holder of which rights? There can be many authors, and even for single-author works there can be arbitrarily many holders of exclusive licenses to different subdivisions of the rights. To give only the simplest case, if one party holds the rights to publish and distribute e-books, and another holds the rights to publish hardcopy books, and the book was scanned by Google, does the inclusion fee go to the holder of e-book rights or of hardcopy rights? The proposed settlement is silent.

(2) Which contractual revenue split? My contract, to use a not atypical example, has one clause and revenue split (royalty percentage) for “books”, a second for subsidiary rights including electronic rights (50/50), a third for electronic use of excerpts (“snippets”) for marketing and promotional purposes, and a fourth for awards or settlements of copyright infringement litigation. Which of these four clauses and splits governs the division of inclusion fees? of revenue form the revenue models? The settlement is silent. In practice, for in-print books the total due all rightsholders will be paid to the publisher. Obviously, they will apply the split most favorable to them (the royalty split for books) unless authors each individually succeed in arbitration for a higher split (e.g. the sub rights split, typically 50/50). So publishers are likely to pay authors only 10-15% of the $60 inclusion fee, or $6-9. That’s only about 1% of statutory damages. Sure, the likelihood of success against a fair use claim for scanning and snippet display might be a long shot, but is it only a 1 in 100 chance?

(3) Orphan publishers Most orphan works are orphans not because an author can;t be found, but because a publisher-rightsholder has gone out of business without leaving any clear heir to its rights. but such books can still be in-print if, for example, the author bought the hardcopy remainder stock and continues to distribute copies, or copies are available from abebooks.com. But all settlement payments for in-print books are to pass through publishers. In such cases where the publisher is defunct, will the authors receive any money, or are they SOL? The settlement is silent. (Parenthetically, I’m amazed how the orphan works discussion has been skewed toward orphan authors when there are obviously so many more orphan publishers.)

How could a settlement competently drafted by good-faith advocates for opposing parties fail to address such obvious issues? The obvious failing is that all of these disputes are between authors and print publishers. They weren’t subject to adversary litigation or arms-length negotiation in this case, where authors and print publishers were “on the same side”, and shouldn’t be “settled” through this case.