Category Archives: Article 02

S 02

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ARTICLE 2 — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS

Also posted in Settlement | Comments closed

S 02.1

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Benefits to the Amended Settlement Class – Overview.

Also posted in Section 2.1, Settlement | Comments closed

S 02.1.1

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(a) Google Book Search. Google is authorized to, in the United States, sell subscriptions to the Institutional Subscription Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Amended Settlement Agreement. Google shall pay to the Registry, for the benefit of the Rightsholders, seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement, less ten percent (10%), for Google’s operating costs, deducted from such revenues prior to such calculation (i.e., sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement). The Registry will distribute the revenues to Rightsholders pursuant to the provisions of the Plan of Allocation.

Also posted in Section 2.1, Section 2.1(a), Settlement | Comments closed

S 02.1.2

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(b) Cash Payment. Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund to pay Amended Settlement Class members whose Books and Inserts have been Digitized prior to the Opt-Out Deadline. on or before May 5, 2009. Such forty-five million United States dollars (U.S. $45 million) will be distributed from the Settlement Fund in the form of Cash Payments of at least sixty United States dollars (U.S. $60) per Principal Work; fifteen United States dollars (U.S. $15) per Entire Insert; and five United States dollars (U.S. $5) per Partial Insert in accordance with the Plan of Allocation. To the extent that funds greater than forty-five million United States dollars(U.S. $45 million) are required in order to pay every such Amended Settlement Class member his, her or its Cash Payment, Google shall make an additional payment to enable such Cash Payments to be made to the Rightsholders from the Settlement Fund. To the extent fundsremain from the forty-five million United States dollars (U.S. $45 million) after all Cash Payments are made, such excess will be distributed pursuant to the Plan of Allocation.

Also posted in Section 2.1, Section 2.1(b), Settlement | Comments closed

S 02.1.3

2 responses to “S 02.1.3”

  1. Gillian Spraggs says:

    ‘The Registry will be responsible for… representing the interests of Rightsholders’.

    A Rightsholder is defined (1.132) as ‘a member of the Settlement Class who does not opt out of the Settlement by the Opt-Out Deadline’.

    That has to mean the authors of the misleadingly-termed ‘orphan works’, the ‘non-active’ rights-holders, as well as the ‘registered’ rights-holders.

    Under UK law that would mean, surely, that the Registry and its officers owe fiduciary duties towards the ‘non-active’ rights-holders. There must, surely, be some equivalent under US law.

    A legal website in the UK gives a definition of fiduciary duties that includes the following: ‘A fiduciary … may not act to their own advantage or the benefit of a third person without the fully informed consent of the principal.’ The Settlement would seem to breach this principle, since the ‘non-active’ rights-holders, by definition, cannot give consent, informed or otherwise, to the actions of Google and the Registry.

  2. Yes, this clause will require that the Registry will owe duties to non-active rights-holders. The scope of those duties, though, are defined by the legal document that creates the fiduciary relationship, and here, I expect that the registry’s charter will be careful to explain that the registry doesn’t need specific consent from non-active rightsholders, provided it follows the terms of the settlement. The Registry can’t deliberately act against their interest, nor can it breach terms in the settlement itself.

    Bottom line: yes to fiduciary duties or something very similar, but informed consent is a default rule, not a mandatory one, and I read the settlement to modify that default rule.

(c) Registry/Notice/Claims Administration Funding. Google shall is obligated to pay thirty-four and one-half million United States dollars (U.S. $34.5 million) (of which twelve million United States dollars (U.S. $12 million) has been paid) to fund the launch and the initial operations of the Registry and to fund other Administrative Costs. The Registry will be responsible for locating and collecting information from Rightsholders, identifying and coordinating payments to Rightsholders, and otherwise representing the interests of Rightsholders under this Amended Settlement Agreement.

Also posted in Section 2.1, Section 2.1(c), Settlement | Comments closed

S 02.1.4

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(d) Attorneys’ Fees and Costs. Google shall pay Plaintiffs’ attorneys’ fees and costs in accordance with Section 5.5 (Attorneys’ Fees).

Also posted in Section 2.1, Section 2.1(d), Settlement | Comments closed

S 02.1.5

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(e) Summary Only. This Section 2.1 (Benefits to the Amended Settlement Class – Overview) is a summary of some of the provisions of this Amended Settlement Agreement and issubject to all of the other provisions of this Amended Settlement Agreement.

Also posted in Section 2.1, Section 2.1(e), Settlement | Comments closed

S 02.2

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Authorization of Google, Fully Participating Libraries and Cooperating Libraries. In exchange for the benefits conferred in this Amended Settlement Agreement on Plaintiffs and Rightsholders, Rightsholders, as of the Effective Date, authorize (a) Google
to make Display Uses and Non-Display Uses of their Books and Inserts in GBS and other Google Products and Services, (b) each Fully Participating Library to use its Library Digital Copy and (c) each Host Site to make the Research Corpus available, all in accordance with the terms and conditions of this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable. As of the Effective Date, Rightsholders authorize Google, the Fully Participating Libraries, the Cooperating Libraries and the Host Sites to engage in the activities, and only the activities, set forth in this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Amended Settlement Agreement or a Library-Registry Agreement shall not be termination of such authorizations except as provided in Section 3.7(b) (Failure to Provide Contemplated Rightsholder Services). This Amended Settlement Agreement does not authorize Google, any Participating Library or any Host Site to make any uses of Booksand Inserts other than those uses that are authorized under this Amended Settlement Agreement. This Amended Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i) the use of any work or material that is in the public domain under the Copyright Act in the United States, (ii) the use of books in hard copy (including such term does not include microform) format other than the creation and use of Digital Copies of Books and Inserts, or (iii) any Participating Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC, or the use of any such Digitized Books that are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC.

Also posted in Section 2.2, Settlement | Comments closed

S 02.3

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Author-Publisher Procedures. All rights of Books Rightsholders under this Amended Settlement Agreement are subject to the Author-Publisher Procedures.

Also posted in Section 2.3, Settlement | Comments closed

S 02.4

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Non-Exclusivity of Authorizations. The authorizations granted to Google in this Amended Settlement Agreement are non-exclusive only, and nothing in this Amended Settlement Agreement shall be construed as limiting any Rightsholder’s right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Amended Settlement Agreement.

Also posted in Section 2.4, Settlement | Comments closed