One of our commenters provided some meaningful feedback to my post from last week on the Google Books settlement. For round two of my Google Books discussion, I would like to address some of those arguments. The poster (Law Student) made two claims: members of the Google Books settlement class should not be considered legally knowledgeable; and the notice provided through the settlement is insufficient to inform members of the class.
Photo by MargauxV (licensed under CC)
Those that are members of the Google Books settlement are not unknowledgeable about issues of copyright and licensing. The settlement specifically only incorporates copyright holders of books that have been registered with the United States Copyright Office. Authors that do not know enough about copyright to register are not considered members of the settlement class and therefore retain their rights against Google. Those that have registered fall into one of two categories: either they are book publishers that share or own copyright in the books, or they are individual authors. To argue that book publishers, who work with copyright issues on a daily basis, are not aware of what rights are involved in the settlement would be an odd claim, so I must assume that Student’s concern was primarily directed at book authors that had sufficient knowledge of copyright to register their books. For those authors, Google and the class action plaintiffs have not only created a website from which authors can download the settlement agreement, but they have also summarized that agreement in question and answer style so that those that are not legally trained may understand what is happening with their rights. For those that still have questions, they can contact the settlement administrator by mail or e-mail. The administrator will answer any questions, and from personal experience, they respond within 48 hours.
Given all of these avenues of information, I find it unconvincing that these somewhat informed authors would not be able to get the information necessary to understand the settlement. The remaining question then is whether the class members will be provided adequate notice. Again, the definition of the settlement class helps assist the class members. By defining the class as only those that have registered with the Copyright Office, the class administrator automatically started out with access to fairly accurate contact information for the rights holders. One might argue that since registering an author might have moved, but most authors that would care enough about their rights to be concerned about the settlement would likely update their copyright registrations with that information. In addition, there is a settlement website, and there has been quite a bit of media exposure concerning the entire case. Finally, Google has paid for an international advertising campaign by which hopefully any author who falls through the cracks will be informed. Student is right that this is constructive notice, but what a construction! Even in a “regular” lawsuit a party can be given notice by constructive notice, such as publication in newspapers, and I am sure that those notices are not nearly as clear or widely read as the ones in this class action.
Student also raised concerns about “other people getting to litigate a person’s rights absent proof that that person was sufficient notified of her involvement.” I have already pointed out that notice of the settlement will more than likely reach all those affected, but even if it didn’t those involved in the settlement negotiations came as close to representing those affected as one could muster, including representatives from both the Author’s Guild and the Association of American Publishers.
In my opinion, anyone who has enough copyright knowledge to register their work with the Copyright Office and who has notice that a settlement regarding their rights has been reached, should be expected to go online and choose to opt-out if that is what they want to do. I apologize if that opinion appears to be “bashing” these authors, but honestly one can not imagine a more tailored and informed class.
Joshua L. Simmons Main Intellectual Property, Internet, Litigation
