Category Archives: Article 13

S 13

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SETTLEMENT ADMINISTRATION PROGRAM

Also posted in Settlement | Comments closed

S 13.1

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Registration and Completing Claims. To receive the benefits of the Settlement, a Person claiming to be a Rightsholder or acting on behalf of a Rightsholder (a “Claimant”) must provide to the Registry the information set forth below on a claim form that Plaintiffs and Google will submit to the Court for its approval prior to the Notice Commencement Date The claim form provided by the Settlement Administrator (“Claim Form”); provided that, if a Publisher Sub-Class Claimant selects Section 13.1(c)(ii)(2)(B) rather than Section 13.1(c)(ii)(2)(A) for a Book, then Claimant may not make a claim for a Cash Payment for that Book and may not Remove that Book, but Claimant’s rights under the Amended Settlement Agreement (includingthe right to exclude a Book from Display Uses) will not otherwise be affected by such selection. Claimants will be able to complete and submit their Claim Forms on the Settlement Website, by postal mail, and otherwise as the Registry may determine in order to maximize Rightsholder efficiency in completing the Claim Forms.

Also posted in Section 13.1, Settlement | Comments closed

S 13.1.1

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(a) General Information. A Claimant must provide the following

Also posted in Section 13.1, Section 13.1(a), Settlement | Comments closed

S 13.1.1.1

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(i) his, her or its name and contact information, including postal address, telephone number and, if available, email address, and if the Claimant is, or is acting on behalf of, a U.S. Person, that Person’s social security number or other tax identification number; and

Also posted in Section 13.1, Section 13.1(a), Section 13.1(a)(i), Settlement | Comments closed

S 13.1.1.2

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(ii) an attestation that (1) all of the information submitted on the Claim Form is true to the best of his, her or its knowledge, information and belief, and(2) the Claimant has a good faith belief that he, she or it holds a Copyright Interest in the Book or the Insert that is the subject of the claim, or that the Person who holds such a Copyright Interest has authorized the Claimant to act on such Person’s behalf.

Also posted in Section 13.1, Section 13.1(a), Section 13.1(a)(ii), Settlement | Comments closed

S 13.1.2

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(b) Pre-Population of Claim Forms. Based on a Claimant’s identification of Books, Google, through a search and selection interface, will pre-populate information regarding those Books in the Settlement Website’s Claim Form for Books.

Also posted in Section 13.1, Section 13.1(b), Settlement | Comments closed

S 13.1.2.3

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(iii) provide information sufficient to identify such Book, including, at a minimum, either the (1) title of the Book and the name(s) of the author(s) and/or editors of the Book or (2) ISBN (if the Book has an ISBN); and

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(iii), Settlement | Comments closed

S 13.1.2.4

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(iv) state either (1) that such Claimant believes that such Book is not a “United States work,” as defined in 17 U.S.C. § 101 or (2) that such Claimant believes that such Book was registered with the U.S. Copyright Office by the Notice Commencement Date. A Claimant may provide information through a data feed, an electronic spreadsheet or such other means as the Registry may specify in order to maximize Rightsholder efficiency in completing the claim forms.

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(iv), Settlement | Comments closed

S 13.1.3

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(c) Books. To claim a Book (not including its Inserts), a Claimant must:

Also posted in Section 13.1, Section 13.1(c), Settlement | Comments closed

S 13.1.3.1

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(i) identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Book;

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(i), Settlement | Comments closed

S 13.1.3.2

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(ii) indicate on the Claim Form, to the best of Claimant’s knowledge,whether such Book:

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Settlement | Comments closed

S 13.1.3.2.1

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(1) is or is not a work for hire, and

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(1), Settlement | Comments closed

S 13.1.3.2.2

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(2) for a Publisher Sub-Class member Claimant, whether (A) such Publisher Sub-Class member is highly confident that the Book is not reverted (based, e.g., on the individual Book or contract for the Book) or(B) such Publisher Sub-Class member is confident that the Book is not reverted (based, e.g., on the type of Book or type of contract for the Book), or

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(2), Settlement | Comments closed

S 13.1.3.2.3

2 responses to “S 13.1.3.2.3”

  1. ehasbrouck says:

    What is “reverted” supposed to mean if no electronic rights were licnsed or granted ounder the original contract between the author and the print publisher? The appropriate questions should be questions about the copyright ownership and the terms of any pre-existing contracts: Whether the claimed electronic rights are exclusive or non-exclusive,whether they can be exercised or licensed individually or only by joint consent of the rightsholders (e.g. multiple authors, or both the author or publisher) , and what percentages of revenues are due to which parties. (A publisher-author contract, for example, minght have granted the publisher the exclusive right to market electronic and other subsidiary rights, but subject to the approval of the author, with a 50/50 of 60/40 or 4/60 or other revenue split.) The question about “reversion” embodies a whole portmanteau of assumptions, not necessarily justified, about the terms of pre-exisitng author-publisher contracts.

  2. Gillian Spraggs says:

    Further to the comment by ehasbrouck: this section also assumes, quite wrongly, that in every case the original contract has licensed the US rights to the publisher. But there are many works by foreign authors (myself among them) where the US rights have never been the subject of a contract. The author has always retained them; ergo, they cannot revert.

(3) for an Author Sub-Class member Claimant, whether (A) such Book is or is not reverted or (B) Claimant does not know whether such Book is reverted;

Also posted in Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(3), Settlement | Comments closed

S 13.1.4

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(d) Inserts. To claim an Insert, a Claimant must identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Insert and must provide information sufficient to identify such Insert, which information shall include:

Also posted in Section 13.1, Section 13.1(d), Settlement | Comments closed

S 13.1.4.1

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(i) To claim an Insert, a Claimant must identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Insert and must provide information sufficient to identify such Insert, which information shall include identification or a description of the content of the Insert, and identification of the Book, Public Domain Book or Government Work in which the Insert appears;

Also posted in Section 13.1, Section 13.1(d), Section 13.1(d)(i), Settlement | Comments closed

S 13.1.4.2

One response to “S 13.1.4.2”

  1. Gillian Spraggs says:

    Why did they specify the date June 1, 2003? It presumably wasn’t picked out at random.

(ii) a statement that, although the Claimant believes such permission was required, (1) the Claimant did not give permission for Online use of the Insert as part of the work in which the Insert appears, or (2) if such permission was granted, it was no longer in effect on or after June 1, 2003; and

Also posted in Section 13.1, Section 13.1(d), Section 13.1(d)(ii), Settlement | Comments closed

S 13.1.4.3

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(iii) a statement either (1) that such Claimant believes that the Insert is not part of a work that was first published in the United States or (2) that such Claimant believes that such Insert, either alone or as part of another work, was registered with the U.S. Copyright Office by the Notice Commencement Date.

Also posted in Section 13.1, Section 13.1(d), Section 13.1(d)(iii), Settlement | Comments closed

S 13.2

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Validating and Challenging Claims.

Also posted in Section 13.2, Settlement | Comments closed

S 13.2.1

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(a) Registry Claim Review. The Registry may review claim forms to verify that the information provided by a Claimant is accurate and supports the claim that the Claimant, or the Person on whose behalf the Claimant is acting, is a Rightsholder of a Book or an Insert. Google may also provide to the Registry any information that Google may have regarding the validity of claims. The Registry may challenge the validity of a claim either on its own accord or based on a dispute between or among Rightsholders under the Author-Publisher Procedures. If the Registry reasonably requests that a Claimant provide additional information to validate such claim, the Claimant shall provide such information if it is within his, her or its possession or control. The Registrymay consider such information and, in its discretion, consult with the Claimant tovalidate the claim. The Registry will advise the Claimant whether the Registry has validated or rejected its claims.

Also posted in Section 13.2, Section 13.2(a), Settlement | Comments closed

S 13.2.2

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(b) Claimant-Registry Challenges. The Claim Form will provide that the Claimant may challenge, pursuant to Article IX (Dispute Resolution), any Registry decision not to validate his, her or its claim.

Also posted in Section 13.2, Section 13.2(b), Settlement | Comments closed

S 13.2.3.1

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(i) As set forth in this Section 13.2(c) (Google-Claimant Challenges), to deter and discover fraud, mistake, intentional misconduct or negligence by Claimants in submitting Claim Forms, Google may challenge whether a Claimant is a Rightsholder of the Book or Insert that he, she or it has claimed only in the case that the Claimant has requested Cash Payments or Removal.

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(i), Settlement | Comments closed

S 13.2.3.2

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(ii) Google may only make such a challenge under the following conditions:

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(ii), Settlement | Comments closed

S 13.2.3.2.1

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(1) in the case of requests for Cash Payments, Google may only make such a challenge if the total amount of all claims for Cash Payments exceeds forty-five million United States dollars (U.S. $45 million), and

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(ii), Section 13.2(c)(ii)(1), Settlement | Comments closed

S 13.2.3.2.2

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(2) in the case of requests for Removal of Books that are not Commercially Available, Google may only make such a challenge if the total number of Books that are not Commercially Available that Claimants have directed to be Removed exceeds two hundred thousand (200,000).

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(ii), Section 13.2(c)(ii)(2), Settlement | Comments closed

S 13.2.3.3

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(iii) Further, Google may only make such a challenge if:

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iii), Settlement | Comments closed

S 13.2.3.3.1

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(1) (A) such Claimant has filed such claims for more than (I) a number of Books or Inserts agreed between Google and the Plaintiffs in the case of a challenge brought pursuant to clause (ii)(1) above, or (II) another number of Books agreed between Google and the Plaintiffs in the case of a challenge brought pursuant to clause (ii)(2) above, in a confidential letter agreement, such numbers not disclosed herein for the purpose of fraud prevention, or (B) Google believes that such Claimant is a Person that has registered multiple claims under one or more aliases, and

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iii), Section 13.2(c)(iii)(1), Settlement | Comments closed

S 13.2.3.3.2

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(2) no dispute between such Claimant and any other Claimants for the Book was, or is being, resolved pursuant to the Author-Publisher Procedures.

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iii), Section 13.2(c)(iii)(2), Settlement | Comments closed

S 13.2.3.4

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(iv) Any challenge in the case of:

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iv), Settlement | Comments closed

S 13.2.3.4.1

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(1) clause (ii)(1) above may be made no later than ninety (90) days after the later of (A) the date Google receives the Registry’s final report under Section 13.513.6 (Final Report Regarding Cash Payments) or (B) the Effective Date, or

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iv), Section 13.2(c)(iv)(1), Settlement | Comments closed

S 13.2.3.4.2

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(2) clause (ii)(2) above may be made no later than ninety (90) days after the later of (A) the condition in clause (ii)(2) has been met, (B) the Effective Date or (C) the date the request for Removal was made.

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(iv), Section 13.2(c)(iv)(2), Settlement | Comments closed

S 13.2.3.5

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(v) Any challenge brought pursuant to this Section 13.2(c) (Google Claimant Challenges) must be based on Google’s good faith belief, supported by evidence, that the Claimant’s claim may be invalid. Google shall not challenge claims in an effort to deter Claimants from submitting valid claims.

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(v), Settlement | Comments closed

S 13.2.3.6

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(vi) Google will initiate challenges by providing notice to the Registry, and the Registry will forward such notice to the Claimant. Google will attempt to resolve the challenge with the Registry, or another representative chosen by the Claimant, on behalf of the Claimant. If Google is unable to resolve the challengewith the Registry or such other representative on behalf of the Claimant andcontinues to have a good faith belief, supported by evidence, that the claimant’s claim may be invalid, then Google may initiate dispute resolution pursuant to Article IX (Dispute Resolution). Provided that the Claimant completes the Claim Form as required, including providing all required attestations, Google will bear the burden of providing clear and convincing evidence, including significant evidence specific to the Books or Inserts that are the subject of the claim, which evidence is reviewed by an individual such as a Google attorney, that a reasonable number of the Claimant’s claims within a set of claims identified by Google are invalid; provided that information about Books other than those that are the subject of Claimant’s claims will only be used by Google to challenge the Claimant’s claims for an imprint if Google shows that such information is relevant to such claims; provided, further that evidence of industry-wide baseline error rates in claims filed with the Registry is not clear and convincing evidence. (For purposes of this Section 13.2(c)(vi), a “set of claims,” means, with respect to claims of a member of the Publisher Sub-Class, claims of Books published by such member’s imprint, that are similar with respect to such evidence and that share other characteristics, such as genre and date of publication.) If Google meets this burden, the Claimant will bear the burden of proving the validity of the claims within such set. If Google does not meet this burden, Google will bear the burden of proving the invalidity of the challenged claims.

Also posted in Section 13.2, Section 13.2(c), Section 13.2(c)(vi), Settlement | Comments closed

S 13.2.3.7

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(vii) Nothing in this [Settlement Agreement](http://www.thepublicindex.org/archives/category/settlement/s-1/s-1-140 obligates Google to take directions for which this Settlement Agreement provides, or to make Cash Payments, with respect to content that is not a Book or an Insert. Any Claimant may dispute a determination by Google or the Registry that the content that such Claimant has claimed is not a Book or an Insert only pursuant to Article IX(Dispute Resolution). A claim for a Commercially Available Book shall not be subject to any challenge under this Section 13.2(c)(Google-Claimant Challenges) unless, upon review of the Claim Form and other information that Google may reasonably consult, there is no apparent link between the Claimant and the publisher of the Book. In any challenge with respect to a Commercially Available Book where Google asserts that the claim is invalid because rights in the Book have reverted, Google shall provide clear and convincing evidence specific to such Book.

Also posted in Section 13.2, Section 13.2(c)(vii), Settlement | Comments closed

S 13.2.4

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(d) Claims for Content that is Neither a Book nor an Insert. Nothing in this Amended Settlement Agreement obligates Google to take directions for which this Amended Settlement Agreement provides, or to make Cash Payments, with respect to content that is not a Book or an Insert. Any Claimant may dispute a determination by Google or the Registry that the content that such Claimant has claimed is not a Book or an Insert only pursuant to Article IX (Dispute Resolution).

Also posted in Section 13.2, Section 13.2(d), Settlement | Comments closed

S 13.3

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(c) Google-Claimant Challenges.

Also posted in Section 13.2, Section 13.2(c), Settlement | Comments closed

S 13.3

One response to “S 13.3”

  1. […] fairness hearing on February 18, 2010. As particularly close followers of the settlement know, the deadline for claiming the $60 one-time cash payment for already-scanned works is March 31, 2011. These two […]

Time for Filing Deadline for Registration/Claim Forms. Rightsholdersmay register to participate in the Settlement at any time, provided that a Rightsholder who may be eligible for a Cash Payment pursuant to Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) shall be required to complete and submit the portion of the Claim Form relating to the claim for such Cash Payment within one year of the Notice Commencement Date by midnight, Eastern Time, March 31, 2011 or such other time as the Court may order.

Also posted in Section 13.3, Settlement | Comments closed

S 13.3

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Claiming Process and Website. The Registry and, for so long as Google continues to provide operational support for the Registry, Google, will (i) assist Claimants in claiming Books pursuant to Section 13.1 (Registration and Completing Claim Forms) and (ii) maintain and improve the Settlement Website so as to facilitate the claiming of Books pursuant to Article XII (Class Notice Program). Google will also use reasonable commercial efforts to correct errors in the Books Database as Google discovers such errors or as they are identified to Google.

Also posted in Section 13.3, Settlement | Comments closed

S 13.4

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Registry Determination of Rightsholder. The Registry will maintain adatabase of Rightsholders and their respective rights under, and directions made pursuant to, this Amended Settlement Agreement. Except as provided in Section 13.2 (Validating and Challenging Claims), in the event of a dispute as to such rights and directions, the Registry will determine the appropriate Rightsholder(s) (for Books, pursuant to the Author-Publisher Procedures) or, if the Registry cannot resolve any such dispute, such dispute will be resolved as provided in Article IX (Dispute Resolution). Until such determination is made, the Registry shall not make any Cash Payment or other payment, or implement any direction for Removal, exclusion, inclusion, or pricing, or any other directions with respect to the matters that are the subject of such dispute.

Also posted in Section 13.4, Settlement | Comments closed

S 13.5

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Final Report Regarding Cash Payments.

Also posted in Section 13.5, Settlement | Comments closed

S 13.5.1

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(a) Draft Final Report. Within a reasonable time after the period set forth in Section 13.313.4 (Time for Filing Deadline for Registration/Claim Form) for a Rightsholder to submit a Claim Form for a Cash Payment, the Registry shall issue a draft final report to Google and Class Counsel setting forth: (i) the number of valid Claim Forms requesting such Cash Payment, (ii) a list of the Books claimed, (iii) a list of the Inserts claimed and the Books, Government Works or Public Domain Works in which they appear, and (iv) the amount of the Supplemental Deposit, if any, that Google is required to make pursuant to Article V (Other Settlement Benefits) based on the information in such draft final report.

Also posted in Section 13.5, Section 13.5(a), Settlement | Comments closed

S 13.5.2

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(b) Further Information. Based on the draft final report, Google will provide the following information:

Also posted in Section 13.5, Section 13.5(b), Settlement | Comments closed

S 13.5.2.1

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(i) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an any Insert for which a Cash Payment has been requested (1) for appearance of the Insert in more than one Book, Principal Work or Government Work, and (2) for the Book in which such Insert appeared as content that was not an Insert, any Book for which a Cash Payment has been requested (1) that has the same Principal Work as another Book for which a Cash Payment has also been requested and (2) where the soft cover Book does not contain additional or different Protected Expression as compared to the hard cover Book but a Cash Payment has been requested for both,

Also posted in Section 13.5, Section 13.5(b), Section 13.5(b)(i), Settlement | Comments closed

S 13.5.2.2

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(ii) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an any Insert for which a Cash Payment has been requested (1) for appearance of the Insert in more than one Book, Principal Work or Government Work, and (2) for the Book in which such Insert appeared as content that was not an Insert, and

Also posted in Section 13.5, Section 13.5(b), Section 13.5(b)(ii), Settlement | Comments closed

S 13.5.2.3

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(iii) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an Insert.

Also posted in Section 13.5, Section 13.5(b), Section 13.5(b)(iii), Settlement | Comments closed

S 13.5.3

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(c) Final Report. The Registry will issue a final report setting forth the information in Section 13.5(a)13.6 (Draft Final Report), as amended to take into account the further information provided by Google pursuant to Section 13.5(b)13.6 (Further Information) and to be consistent with Google’s obligations under Section 5.1(a) (Cash Payments).

Also posted in Section 13.5(c), Settlement | Comments closed

S 13.5.4

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(d) Disputes. Any disputes regarding the final report shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Section 13.5, Section 13.5(d), Settlement | Comments closed

S 13.6

3 responses to “S 13.6”

  1. To the non-legal mind, this sounds very much as though they are saying: ‘Oh, by the way, we could give the promised cash payments for your books to any old claimant, or, indeed, withhold them altogether, and you will have no right to sue us.’ Is that what it means?

  2. I would think mostly, yes. The remedy for misdirected payments is to look to the person to whom the payments were mistakenly sent. The idea is that you’re supposed to sue them, not Google or the Registry, etc. If Google or the Registry started simply withholding payments completely, I would think that would end up being actionable as a breach of the settlement agreement itself, or perhaps a violation of the Registry’s charter.

  3. ‘actionable as a breach of the settlement agreement itself’

    But doesn’t the second part rule that out:

    this Amended Settlement Agreement is not intended to, nor shall it in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party

    ‘Any third party’ would even seem on the face of it to rule out action against a person who was sent a payment in error by the person(s) to whom it should have been sent.

No Liability For Settlement or Registry Administration. No Person will have any claim against Plaintiffs, Class Counsel, Google, the Registry, the Settlement Administrator or any agent of any such Person for (a) any decision with respect to any Cash Payment or (b) actions taken with respect to any Cash Payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, this Amended Settlement Agreement is not intended to, nor shall it in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party.

Also posted in Section 13.6, Settlement | Comments closed