Category Archives: Section 3.5

S 03.05

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Right to Remove or Exclude.

Also posted in Article 03, Settlement | Comments closed

S 03.05.1

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(a) Right to Remove.

Also posted in Article 03, Section 3.5(a), Settlement | Comments closed

S 03.05.1.1

5 responses to “S 03.05.1.1”

  1. I’d missed this point, till I read the objection by Arlo Guthrie et al (p. 7): an author of an insert is not given the right to direct that his/her work be removed.

    That is outrageous.

  2. It’s pretty much opt out or nothing for Insert owners.

  3. Well, I am more than ever glad that I had the sense to opt out. But there are going to be a lot of poets, essayists and short story writers caught unwittingly in this trap, and some of them, I predict, are going to be pretty upset. I know that some of the people who have opted in have done so because they believed that that would be the best way to arrange to have their works removed.

  4. I’m curious what the interface for opting out with respect to Inserts looks like. I was able to find some of my own “books” in the database (they’re not registered, so I’m not a class member, but I didn’t see inserts.

  5. I opted out by certified, tracked mail. When it apparently got eaten by the US postal service, I rang up the settlement administrators and arranged to scan it and send it attached to an email. At my request, they kindly emailed me back to tell me this had arrived: and my hard copy had finally turned up too.

    So I don’t know what the interface for opting out Inserts looks like. I sent them full publication details, ISBNs (in both forms) and page numbers.

    I do know one thing that ought to be noted by people opting out: one writer who opted out online failed to get a confirmation screen: which suggests to me that it crashed and failed to register his opt out. C. E. Petit at Scrivenor’s Error has stated that ‘the system does not appear very robust’, and I assume this is probably the kind of thing he means.

(i) Right to Remove. A Rightsholder of a Book may direct that his, her or its Book not be Digitized, or if already Digitized, that the Book be Removed. If a Book has not yet been Digitized when Google receives a Removal request for that Book, Google will use reasonable efforts not to Digitize that Book, but, in any event, will comply with the request to Remove. Google will implement a Rightsholder’s Removal direction within as soon as reasonably practicable, but in any event no later than thirty (30) days after notice from the Registry, and in accordance with Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models), will simultaneously act promptly to exclude a Book for which it has received a Removal request. A Fully Participating Library will implement a Rightsholder’s Removal direction within for a Book as soon as reasonably practicable, but in any event no later than ninety (90) days after notice from the Registry.

Also posted in Article 03, Section 3.5(a), Section 3.5(a)(i), Settlement | Comments closed

S 03.05.1.2

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(ii) Back-up Storage. Google and Fully Participating Libraries may maintain Books on back-up tapes or on any other back-up storage media subject to compliance with the Security Standard. If any back-up tape or other back-up storage media containing such Book is restored, then any Book that has been Removed pursuant to Section 3.5(a)(i) (Right to Remove) shall also be Removed from any copy made from the back-up tape or other back-up storage media.

Also posted in Article 03, Section 3.5(a), Section 3.5(a)(ii), Settlement | Comments closed

S 03.05.1.3

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(iii) Limitations on Right to Remove. The right to Remove under Section 3.5(a)(i) (Right to Remove) is limited to requests made within twenty-seven (27) months from the Notice Commencement Date on or before April 5, 2011 for Removal as described in Section 1.126(a) (Removed) or after April 5, 2011 but on or before March 9, 2012, for Removal as described in Section 1.126(b) (Removed). Thereafter, requests will be honored only to the extent that the Books have not yet been Digitized as of the date the request is made; if the Books at issue have already been Digitized, the Rightsholder may request exclusion from particular Display Uses (under Section 3.5(b)(i) (Right to Exclude)) but not Removal (under Section 3.5(a)(i) (Right to Remove)).

Also posted in Article 03, Section 3.5(a), Section 3.5(a)(iii), Settlement | Comments closed

S 03.05.2

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(b) Right to Exclude from Display Uses and Revenue Models.

Also posted in Article 03, Section 3.5(b), Settlement | Comments closed

S 03.05.2.1

3 responses to “S 03.05.2.1”

  1. Again, a point I had missed until I read the objection by Arlo Guthrie et al (p.12): the author of an insert is not given the right to exclude his/her work from revenue models, only from display uses.

    Again – it’s outrageous.

  2. One can understand why Google didn’t want to let Insert owners Exclude from Consumer Purchase — the consumer-protection issues in selling copies of books that had sections taken out would be such a nightmare that an exclusion of any insert would probably scotch the whole book.

    But yes, this is one of those provisions that — particularly for some classes of authors — is going to be quite a problem.

  3. It is also the case that the copyright in a work is exactly the same whether it is a full-length novel or a haiku. From a copyright point of view, the distinction between a book and a so-called insert doesn’t exist – they both get the same protection. That is the case in the UK, anyway. So according the author of a book more rights than the author of a short story is just – arbitrary. And, of course, oppressive to authors who write in short forms.

(i) Right to Exclude. Any Rightsholder of a Book at any time maydirect 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 under Section 3.10(c)(ii) (Hyperlinks and Book Annotations), 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; provided that any Rightsholder of an Insert may only direct that his,her or its Insert, or any portion thereof, be excluded but not the entire Book, Public Domain Book or Government Work in which its Insert is contained.Google shall implement any such direction as follows. Google will implement a Rightsholder’s exclusion direction within promptly, but in any event no later than thirty (30) days after notice from the Registry or from resolution of the dispute in favor of such Rightsholder (in the case of a challenge under Section 3.5(b)(ii) (Challenging Insert Exclusion Requests) or Section 3.5(b)(vii) (Government Works and Public Domain Works)). Google shall use commercially reasonable efforts to develop a mechanism for excluding no more of Books or Inserts than Rightsholders direct. If, after using such commercially reasonable efforts, Google is unable to limit its exclusion to the Insert or portion of the Book or Insert directed by a Rightsholder, Google mayexclude up to the entire page or pages on which such Insert or portion appears. If, however, Google or the Registry develops a tool that enables Rightsholders to specify with precision the location and amount of material in an Insert or portion of a Book or Insert that is less than an entire page and for which the Rightsholder has directed exclusion, Google shall, upon receipt of such direction, exclude such Inserts or portions of Books or Inserts, but no more than that, from Display Uses as directed.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(i), Settlement | Comments closed

S 03.05.2.1.1

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(1) Exclusion from Library Digital Copy. Notwithstanding Section 3.5(b)(i) (Right to Exclude), no Rightsholder may direct that his, her or its Book or Insert be excluded from any Library Digital Copy provided, however, that, in the case of a Book, a Rightsholder of the Book may request Removal of such Book pursuant to Section 3.5(a) (Right to Remove).

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(i), Section 3.5(b)(i)(1), Settlement | Comments closed

S 03.05.2.2

2 responses to “S 03.05.2.2”

  1. Gillian Spraggs says:

    ‘may challenge such direction under law’

    Law here presumably means primarily the law of ‘fair use’: so you cannot challenge the use of passages quoted under that law in, for instance, critical works. That is, I suppose, reasonable.

    But contract rights? Suppose you have a poem in an anthology, and you have only licensed print rights, and UK rights, to the editor/publisher? Will Google now try to argue from this that you have no right to object to its electronic publication by Google in the States? Can they argue that? This is a matter of real concern to me.

  2. Gillian Spraggs says:

    I think there may be a partial answer to this question in Section 13.1(d)(ii): “To claim an Insert, a Claimant must … provide information 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”. That’s if I have correctly understood a rather opaque passage.

(ii) Challenging Insert Exclusion Requests. The Rightsholder of a Book that contains an Insert that the Rightsholder of the Insert has directed be excluded may challenge such direction under law or contract rights, and any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of a Book that contains an Insert for which the Insert Rightsholder has directed exclusion is not a Registered Rightsholder or (b) the Registered Rightsholder of the Book that contains such Insert (1) determined not to challenge such exclusion pursuant to the previous sentence and (2) does not object to Google making such challenge, then Google may challenge whether the Rightsholder of the Insert would have a right under the Copyright Act to exclude such Insert. Google and the Registry will develop a process to implement the foregoing. Any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(ii), Settlement | Comments closed

S 03.05.2.3

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(iii) Coupling Requirement. Notwithstanding Section 3.5(b)(i) (Right to Exclude), if the Rightsholder of any Library Work authorizes Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) of or for such Library Work and Google uses a Library Scan of such Library Work for Consumer Purchase or for such new additional Revenue Model, then the Rightsholder authorizes Google to include such Library Work in all Institutional Subscriptions (the “Coupling Requirement”); provided, however, that if a Library Work is Commercially Available as of the Notice Commencement Date or becomes Commercially Available at any time during the two (2)-year period after the Notice Commencement Date, the Coupling Requirement will not apply to that Library Work; provided, further, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google is using the Library Scan for Display Uses.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(iii), Settlement | Comments closed

S 03.05.2.4

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(iv) Mistakes and the Coupling Requirement. IIf, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan for Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) is not Commercially Available but Google mistakenly determined such Library Work to be Commercially Available, and such Library Work does not become Commercially Available at any time during the two (2)-year period following the Notice Commencement Date, then, upon a determination that the Library Work is not Commercially Available after such two (2)-year period, the Coupling Requirement will apply to such Library Work if Google is using a Library Scan for Display Uses. If, as of the Notice Commencement Date or at any time during the two (2)-year period following the Notice Commencement Date, such Library Work is mistakenly determined to be not Commercially Available, then, upon determination that the Library Work is Commercially Available, the Coupling Requirement will not apply to such Library Work; provided, however, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google uses a Library Scan for Display Uses.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(iv), Settlement | Comments closed

S 03.05.2.5

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(v) Waiver of Coupling Requirement. Google and the Registry may, with the consent of a Fully Participating Library or a Cooperating Library, agree to waive the Coupling Requirement as to Library Works of which such Fully Participating Library or Cooperating Library is the source and for which Google uses a Library Scan for Display Uses; provided, however, that for any Library Work for which a Library Scan is constructed from more than one physical copy of a Library Work, such waiver requires the consent of all Fully Participating Libraries and Cooperating Libraries that are the source of copies of such Library Work. Any Fully Participating Library and Cooperating Library may also agree to such a waiver in its Digitization Agreement with Google or upon notice to Google, in which event Google shall notify the Registry of such waiver. Google and the Registry may, with the consent of all of the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, agree to waive the Coupling Requirement as to all Library Works subject to the Coupling Requirement.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(v), Settlement | Comments closed

S 03.05.2.6

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(vi) Continuing Obligations. If Google is authorized to make a Display Use of a Book and, subsequent to such authorization, a Rightsholder Removes such Book or excludes such Book or an Insert contained therein, Google shall cease such Display Use except that Google may make such Display Use of such Book or Insert to the extent necessary to fulfill its obligations as of the date of such Removal or exclusion request to any user who previously purchased access to or use of the Book through any Institutional Subscription (for a period not to exceed ten (10) months or the term of the Institutional Subscription, whichever is less, after the date of such Removal or exclusion request) or Consumer Purchase or any substantially similar Google Product or Service based on authorizations granted to Google under a separate agreement entered into directly with the Rightsholder.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(vi), Settlement | Comments closed

S 03.05.2.7

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(vii) Government Works and Public Domain Works. If a Rightsholder of an Insert in a Government Work or a Public Domain Book (not an Insert in a Book) directs Google to exclude its Insert from Display Uses, Google may elect to reject such direction. In the event of such a rejection, such Rightsholder may, notwithstanding any release in this Amended Settlement Agreement, bring either a judicial action in United States federal court against Google with respect to Google’s use of the Insert, in which judicial action the Rightsholder may seek to recover any and all relief available pursuant to the Copyright Act or, alternatively, the Rightsholder may initiate dispute resolution under Article IX (Dispute Resolution) with respect to Google’s rejection of the Rightsholder’s direction. If the Rightsholder prevails in such arbitration, (i) the Arbitrator shall issue an order prohibiting Google from making any and all Display Uses of such Insert that the Arbitrator determines would be an infringement of such Rightsholder’s Copyright Interest, (ii) Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including the cost of the arbitration, and (iii) the foregoing and any other injunctive relief deemed appropriate by the Arbitrator shall be Google’s sole obligation and the Rightsholder’s sole remedy for rejecting the Rightsholder’s direction for exclusion of its Insert in a Government Work or Public Domain Book from Display Uses (in addition to any award of injunctive relief, to prevent a continuing infringement of such Rightsholder’s Copyright Interest in his, her or its Insert, that may be awarded by the Arbitrator). Pending the Decision of the Arbitrator, Google shall stop any and all Display Uses of the Insert.

Also posted in Article 03, Section 3.5(b), Section 3.5(b)(vii), Settlement | Comments closed

S 03.05.3

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(c) Take-Down or Transfer Requests.

Also posted in Article 03, Section 3.5(c), Settlement | Comments closed

S 03.05.3.1

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(i) Definitions. As used in this Section 3.5(c) (Take-Down or Transfer Requests), the following terms have the following meanings:

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Settlement | Comments closed

S 03.05.3.1.1

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(1) “Counter-Notice” means a request, in the form of notice or-Publisher Procedures, that states, under penalty of perjury, that the Initial Authorizing Rightsholder has the good faith belief that he, she or it has rights in a Book that is the subject of a Take Down Request or a Transfer Request necessary to authorize Google to exploit such Book as it is being exploited in such Other Google Program.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(1), Settlement | Comments closed

S 03.05.3.1.2

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(2) “Educational Books” means Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(2), Settlement | Comments closed

S 03.05.3.1.3

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(3) “Initial Authorizing Rightsholder” means the Person who had given Google permission to use a Book that is the subject of a Take Down Request or a Transfer Request.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(3), Settlement | Comments closed

S 03.05.3.1.4

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(4) “Notifying Rightsholder” means a Rightsholder who has a good faith belief that Google is exploiting a Book in an Other Google Program without the necessary authorization from such Rightsholder.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(4), Settlement | Comments closed

S 03.05.3.1.5

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(5) “Other Google Program” means a Google program other than, but similar to, the Revenue Models, including the Google Partner Program.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(5), Settlement | Comments closed

S 03.05.3.1.6

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(6) “Take Down Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, that Google remove a Book from an Other Google Program.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(6), Settlement | Comments closed

S 03.05.3.1.7

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(7) “Transfer Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, to transfer a Book from an Other Google Program to one or more Display Uses in one or more of the Revenue Models.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(7), Settlement | Comments closed

S 03.05.3.2

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(ii) Procedures. The following procedures will apply to each Book classified as In-Print under the Author-Publisher Procedures (except for Educational Books) that is the subject of a contract between an author and a publisher regarding publication of such Book executed prior to 1992 and that has not been amended thereafter to expressly grant or retain all electronic rights pertinent to an Other Google Program if such Book is displayed in an Other Google Program.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Settlement | Comments closed

S 03.05.3.2.1

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(1) If Google receives a Take Down Request or a Transfer Request from the Registry, Google shall send a copy to the Initial Authorizing Rightsholder.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(1), Settlement | Comments closed

S 03.05.3.2.2

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(2) If the Initial Authorizing Rightsholder fails to respond within thirty (30) days, then, if the request satisfies the requirements set forth in the Author-Publisher Procedures, Google shall take down such Book or transfer such Book into the Revenue Models, as specified in the request. If Google transfers such Book into the Revenue Models, such Book shall become subject to this Amended Settlement Agreement.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(2), Settlement | Comments closed

S 03.05.3.2.3

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(3) If the Initial Authorizing Rightsholder fails to respond within thirty (30) days, then, if the request satisfies the requirements set forth in the Author-Publisher Procedures, Google shall take down such Book or transfer such Book into the Revenue Models, as specified in the request. If Google transfers such Book into the Revenue Models, such Book shall become subject to this Settlement Agreement.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(3), Settlement | Comments closed

S 03.05.3.2.4

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(4) If the Initial Authorizing Rightsholder responds to a Transfer Request by filing a notice of objection with the Registry, then Google shall not include such Book in the Revenue Models and shall stop displaying such Book in the Other Google Program while the Notifying Rightsholder and the Initial Authorizing Rightsholder resolve the dispute. Google shall only restore access to such Book in any of the Revenue Models or the Other Google Program once (a) the Initial Authorizing Rightsholder and the Notifying Rightsholder jointly authorize Google to do so or (b) either the Initial Authorizing Rightsholder or the Notifying Rightsholder obtains a court (or, if the contract between the author and publisher regarding publication of such Books permits, arbitration) ruling giving it authority to direct Google to do so.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(4), Settlement | Comments closed

S 03.05.3.2.5

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(5) In any disputes between an Initial Authorizing Rightsholder and a Notifying Rightsholder over which of them has the right to authorize Google to exploit a Book in the Other Google Program or in the Revenue Models, Google will not be named as a party or brought into the dispute in any manner and will have no liability or responsibility with respect to any such dispute.

Also posted in Article 03, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(5), Settlement | Comments closed