GBS: Will the Simplified Claim Form Complicate Matters?

A new page on the settlement administration site explains:

The parties are working to improve the Claim Form. We encourage Rightsholders to claim and manage their Books and Inserts online at this website, but if you have had problems doing that or prefer to claim by email or regular mail, authors, their heirs and/or agents and other Rightsholders may initiate the claiming process by sending a list of their works to the Settlement Administrator. A list of both author(s) and Book or Insert titles(s) is sufficient, although the process of claiming your works will be much easier if you are also able to provide any or all of the following information: ISBN, publisher, publication date and place of publication. All this information should be available in the book itself.

You may email your list to in either the body of the email or as an attachment in Excel, Word, PDF, or any other standard electronic format, whichever is easiest for you. If you would prefer, you can mail a hard copy of your list to the Settlement Administrator at the following address:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364

Please include your name, the name of the author or agency (if different) (or, for publishers, the name of the publisher), email address (if you have one), mailing address, and telephone number so that the Settlement Administrator can contact you to help you complete your claim.

If you choose this simplified procedure, please be patient, as it will likely take the Settlement Administrator several months to contact you, and you may not be contacted until after the Settlement is approved by the Court and there can be no more appeals. There is, however, no reason to worry. First, Google will not display your work under the Settlement unless and until the Settlement is finally approved. This will take a considerable amount of time. You will be notified when this occurs, and reminded that you can direct that your works not be displayed by Google, if you have not done so already. Second, although the deadline to claim a Cash Payment is March 31, 2011, your claim will be timely if you have submitted your list to the Settlement Administrator before that date, regardless of the date when your claim is actually completed.

If you have any questions about this simplified claiming procedure, please contact the Settlement Administrator.

The sentiment—make the process of responding to the settlement’s demands less onerous on copyright owners—is admirable. The implementation strikes me as quite ill-advised. Let me count the ways:

  1. Why change horses in midstream? Materially altering the procedure in the middle of the response period may increase the confusion, not reduce it.
  2. In fact, there are now three horses (four if you count the original and amended deadlines separately): the old claim form, the modified one, and the “send us a letter” option. Isn’t this getting to be rather a lot?
  3. That new, modified claim form is currently vaporware. When will it be ready, and will preannouncing it cause some copyright owners to botch the process because they decided to wait?
  4. Why couldn’t this simplified claim form have been released before the second opt-out/objection period began? The parties had plenty of time to think about problems with the old claim form, after all.
  5. Given how much time has elapsed in the opt-out/objection periods and how little now remains, presumably the parties are not going to rest solely on the modified form as being sufficient to satisfy Rule 23. Why, then, introduce the modified one? Whatever changes they make are all but certain to make the old one look bad. Edits almost always do.
  6. Isn’t there now a material difference between the difficulty of claiming works and the difficulty of opting out? To claim, the parties just say “send us a letter”; to opt out, they direct copyright owners to the web form. Mightn’t this be perceived as biasing the question?
  7. Wait several months to be contacted after you send a letter? How will you know that it was received until it’s far too late?
  8. What will happen if the claims administrator mistakes an opt-out letter for a claim letter, or vice-versa? Some of the opt-out letters the court got were at least mildly ambiguous, and this new procedure seems to open the doors to further trouble.

I do not expect good things to come of this change.

Ah, but this is not really an attempt at simplifying the claims process, or of helping writers grasp the intricacies of the settlement and how each should best respond. Have we seen changes made or great concern expressed about the need to help writers understand claims matters, ere this?

What we have before us primarily is an (admirably) adept bit of politics.

This message is meant drum up support for the settlement among writers by insinuating: fast money! Just send us your list!

In this economic climate, when nearly every writer I know is struggling to stay afloat, “found money” in any amount takes on greater significance. Also, this settlement is so intricate that a majority of intelligent, able writers have thrown up their hands over trying to understand whether it is good for them or bad for them. If somebody offers a check, they will take it — especially since there is near-universal agreement that Google “stole” our books.

If a substantial number of writers do indeed send in their lists (which I sincerely hope will NOT happen), the Authors Guild’s attorneys can use the response as a counter argument to class objections and perhaps also to “opt out” objections. As in “Writers really do want this, your honor! Look how many writers voluntarily sent us information about what they’ve written!”

It’s a clever move.

What will happen if writers who have opted out send lists of their work after their opt out letter? (As, in fact, I have been recommending, for those who want to opt out within this very tight deadline, want to send a list, and haven’t had time to make one.)

Will they find they have been opted back in again, quite against their intentions?

‘A list of books’, on its own, isn’t evidence of anything. And anyone can send a list of an author’s books.

Reading the instructions above, I note that they are worded so as to make no mention of a need for a clear statement of intention to opt in (instead, they promise to ‘help you complete your claim’ at some later stage). And that should be sounding a loud warning klaxon.

Is this legal? Can they vary the procedure to this extent, without returning to the court for permission?

Can a mere list of books be used as evidence of intention, in a matter as serious as this?

As for Salley’s point about how the AG’s attorneys may use this: sounds very likely to me.

Will the court accept the word of the AG’s attorneys, or anyone else closely associated with the settling parties, on the figures for claims (and/or opt outs)? Is there to be no independent verification of this?

Independent not only of Google and the plaintiffs, but of Rust Consulting… Note the way the settlement website has been managed since the amended agreement came out: see comments here, here and here. It is ‘maintained by Rust Consulting’: home page: scroll to foot.