Category Archives: Article 05

S 05

Comments are closed.

ARTICLE 5 – OTHER SETTLEMENT BENEFITS

Also posted in Settlement | Comments closed

S 05.1

Comments are closed.

Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.

Also posted in Section 5.1, Settlement | Comments closed

S 05.1.1

Comments are closed.

(a) Cash Payments. For every Principal Work, Entire Insert or Partial Insert that Google Digitized prior to the Opt-Out Deadlineon or before May 5, 2009 without the Rightsholder’s authorization and that is the subject of a validated claim pursuant to Article XIII (Settlement Administration Program), Google will make a Cash Payment to the Settlement Fund 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 (each, a “Cash Payment”). Such Cash Payments shall be distributed to the Rightsholders in accordance with the Plan of Allocation and the Author-Publisher Procedures. Only one Cash Payment will be made per Principal Work, Entire Insert or Partial Insert regardless of the number of times that Google has Digitized such Principal Work or Insert and regardless of the number of Books in which such Principal Work or Insert appears. If a Cash Payment is made for a Book, then no Cash Payment will be made for any portions of such Book that are used as Inserts. If a soft cover Book Digitized by Google and a hard cover Book Digitized by Google contain the same Principal Work, if the two (2) Books do not contain additional or different Protected Expression, only one Cash Payment for the Principal Work will be made even if the soft cover Book and hard cover Book have different ISBNs. A Rightsholder may claim either a Cash Payment for a Principal Work or a Cash Payment for any Expression from such Principal Work that is an Entire Insert or Partial Insert in any other Book, but not both.

Also posted in Section 5.1, Section 5.1(a), Settlement | Comments closed

S 05.1.2

Comments are closed.

(b) Funding of Cash Payments. To fund the Cash Payments, Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund. If the total Cash Payments to be made in accordance with Section 5.1(a) (Cash Payments) exceed such amount, then Google shall pay to the Settlement Fund, in addition to such amount, the amount necessary to make all Cash Payments.

Also posted in Section 5.1, Section 5.1(b), Settlement | Comments closed

S 05.1.3

Comments are closed.

(c) Distribution of Overage. If the amount distributed from the Settlement Fund to Rightsholders under Section 5.1(a) (Cash Payments) is less than forty-five million United States dollars (U.S. $45 million), then the remaining funds shall be reallocated in accordance with the Plan of Allocation.

Also posted in Section 5.1, Section 5.1(c), Settlement | Comments closed

S 05.2

Comments are closed.

Payment For Registry, Notice and Claims Administration. In addition to the Cash Payments provided for in Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized), Google has paid or shall pay into the Settlement Fund thirty-four million five hundred thousand United States dollars (U.S. $34.5 million), as set forth in Section 5.3 (Timing of Payments under Sections 5.1 and 5.2). Plaintiffs will use all such funds for Administrative Costs.

Also posted in Section 5.2, Settlement | Comments closed

S 05.3

Comments are closed.

Timing of Payments under Sections 5.1 and 5.2.

Also posted in Section 5.3, Settlement | Comments closed

S 05.3.1

Comments are closed.

(a) Initial Settlement Deposit. No later than ten (10) Business Days after the Settlement Agreement Date, Google shall deposit the amount of Google deposited twelve million United States dollars (U.S. $12 million) (the “Initial Settlement Deposit”) on November 10, 2008 into an interest bearing escrow account by wire transfer to the Depository Bank. The Initial Settlement Deposit, and any additional funds from the Final Settlement Deposit that Google may deposit pursuant to agreement of Google and Class Counsel, shall be held in escrow in the Settlement Fund and administered by the Settlement Administrator, Class Counsel and the Depository Bank, pursuant to an escrow agreement approved by Class Counsel and Google and subject to Section 5.3(f) (Investment). Pursuant to the terms of the escrow agreement, upon the Effective Date, any and all rights of Google to the Initial Settlement Deposit, any such additional funds, and any interest or income earned thereon shall cease to exist. Consequently, the terms of the escrow agreement will provide that, as of the Effective Date, the entire balance of the Initial Settlement Deposit and any such additional funds shall be in the sole control of Class Counsel, subject to Section 5.3(d) (Limitation of Use).

Also posted in Section 5.3, Section 5.3(a), Settlement | Comments closed

S 05.3.2

Comments are closed.

(b) Final Settlement Deposit. No later than ten (10) Business Days after the Effective Date, Google shall deposit the amount of sixty-seven million five hundred thousand United States dollars (U.S. $67.5 million) (the “Final Settlement Deposit”), less any funds in addition to the Initial Settlement Deposit that may have been paid pursuant to Section 5.3(a) (Initial Settlement Deposit), in the Settlement Fund by wire transfer to the Depository Bank. The Final Settlement Deposit consists of the balance of the amount owed under Sections 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) and 5.2 (Payment for Registry, Notice and Claims Administration).

Also posted in Section 5.3, Section 5.3(b), Settlement | Comments closed

S 05.3.3

Comments are closed.

(c) Supplemental Deposit. In the event Google is required to make additional sentence of Section 5.1(b) (Funding of Cash Payments), Google shall deposit in the Settlement Fund an amount sufficient to fund the additional Cash Payments (“Supplemental Deposit”) by wire transfer to the Depository Bank, within ten (10) Business Days after the later of (i) the date on which the Registry issues to the Plaintiffs and Google its final report regarding Cash Payments pursuant to Section 13.513.6 (Final Report Regarding Cash Payments) or (ii) the Effective Date.

Also posted in Section 5.3, Section 5.3(c), Settlement | Comments closed

S 05.3.4

Comments are closed.

(d) Limitation of Use. Except as otherwise provided in this Amended Settlement Agreement, no disbursement or other use of any portion of the Settlement Fund shall be made without approval of the Court.

Also posted in Section 5.3, Section 5.3(d), Settlement | Comments closed

S 05.3.5

Comments are closed.

(e) Designation. The Settlement Fund is intended as, and shall be, a separate escrow fund of moneys held at Depository Bank and shall qualify as a “qualified settlement fund” within the meaning of Treasury Regulation Section 1.468B-1. Class Counsel or its designee shall be the “administrator” of the Settlement Fund within the meaning of Treasury Regulation Section 1.468B-2(k)(3). Class Counsel or its designee shall apply, or shall cause application to be made, to the Internal Revenue Service for an employer identification number on behalf of the Settlement Fund and shall further cause to be prepared on behalf of the Settlement Fund any and all required tax returns. Class Counsel or its designee shall file such tax returns with all appropriate tax authorities and shall cause any taxes shown due on such returns or otherwise and payable by the Settlement Fund to be paid to the United States Treasury or other taxing authority on behalf of the Settlement Fund from the funds on deposit in the Settlement Fund. Class Counsel or its designee shall do or cause to be done any and all other acts as may be reasonably required to cause the Settlement Fund to qualify and remain qualified as a “qualified settlement fund” as described above.

Also posted in Section 5.3, Section 5.3(e), Settlement | Comments closed

S 05.3.6

Comments are closed.

(f) Investment. Until such time after the Effective Date as the Settlement Fund is distributed to Rightsholders consistent with the terms of this Amended Settlement Agreement and as otherwise ordered by the Court, the Settlement Fund shall be invested and reinvested by Class Counsel in United States Treasury Bills, Notes or other obligations of the United States or its instrumentalities of no more than six (6) months’ duration, except that such portions of the Settlement Fund as may reasonably be needed to pay current Administrative Costs, including expenses associated with providing notice of the Settlement to the Amended Settlement Class, or payment of taxes arising with respect to income earned by the Settlement Fund (including the reasonable expenses of a tax attorney or consultant and mailing and distribution costs and expenses related to filing tax returns), may be held in the form of cash or money market instruments. All interest and gains earned on the Settlement Fund or any portion thereof shall become and remain a part thereof. No party shall be responsible for any losses, principal or otherwise, of the Settlement Fund.

Also posted in Section 5.3, Section 5.3(f), Settlement | Comments closed

S 05.3.7

Comments are closed.

(g) Payment of Administrative Costs. Prior to the Effective Date, disbursements may be made from the Initial Settlement Deposit, or any additional funds that may have been paid pursuant to Section 5.3(a) (Initial Settlement Deposit), for reasonable expenses actually incurred in paying Administrative Costs, in a total amount not to exceed twelve million United States dollars (U.S. $12 million), or such other amount as Google and Class Counsel may agree, without further order of the Court, and the amounts for Administrative Costs incurred (including accrued-but-not-yet-paid expenses) shall not be refundable to Google in the event this Amended Settlement Agreement is disapproved, voided, or otherwise fails to become final. No other payments, disbursement, or transfers of any kind from the Settlement Fund, including Class Counsel’s attorneys’ fees and costs of litigation, shall be made prior to the Effective Date without leave of Court for good cause shown. Google shall have no responsibility for the administration, operation, investment or distribution of the Settlement Fund. Plaintiffs shall use commercially reasonable efforts to minimize expenditures from the Settlement Fund.

Also posted in Section 5.3, Section 5.3(g), Settlement | Comments closed

S 05.3.8

Comments are closed.

(h) Google Rights and Obligations. Google shall not have any responsibility to make any filings relating to the Settlement Fund, and Google shall have no responsibility to pay taxes, including interest and penalties due thereon, on interest earned by the Settlement Fund. In the event the Settlement is not approved by the Court or is otherwise terminated, the Settlement Fund (less any Administrative Costs incurred) shall be promptly returned to Google, and in such event Google shall be responsible for payment of all taxes on interest earned on the Settlement Fund after the date of such return.

Also posted in Section 5.3, Section 5.3(h), Settlement | Comments closed

S 05.4

Comments are closed.

Plan of Allocation. The Plan of Allocation sets forth the plan of allocating payments Google makes to or for the benefit of Registered Rightsholders under Sections 4.1 (Institutional Subscriptions), 4.2 (Consumer Purchases), 4.4 (Advertising Revenue Model), 4.7 (NewAdditional Revenue Models), 4.8 (Public Access Service) and 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized). The Registry shall make payments to Registered Rightsholders from amounts received by it pursuant to Article IV (Economic Terms for Google’s Use of Books), or shall cause payments to be made from the Settlement Fund as provided in the Plan of Allocation and the Registry shall be responsible for correcting or causing to be corrected any errors in making such payments.

Also posted in Section 5.4, Settlement | Comments closed

S 05.5

One response to “S 05.5”

  1. Gillian Spraggs says:

    So if the settlement goes through, Google will pay $30 million to the lawyers who negotiated the agreement on behalf of the authors?

Attorneys’ Fees. Counsel for the Author Sub-Class shall apply to the Court for an award of attorneys’ fees and reimbursement of expenses in a total amount not to exceed thirty million United States dollars (U.S. $30 million). Google has agreed to pay those amounts over and above the other consideration to the Amended Settlement Class, and agrees not to undermine in any way, or encourage anyone else to undermine in any way, the petition for attorneys’ fees filed by Counsel for the Author Sub-Class so long as such petition seeks fees and reimbursement of expenses in the amount of thirty million United States dollars (U.S. $30 million). In no event will Google be obligated to pay any attorneys’ fees and expenses for Counsel for the Author Sub-Class in excess of thirty million United States dollars (U.S. $30 million). Attorneys’ fees and expenses consistent with this Section 5.5 (Attorneys’ Fees) that are granted by the Court shall be paid by the Depository Bank within ten (10) Business Days after the Effective Date by wire transfer to counsel for the Author Sub-Class.

Also posted in Section 5.5, Settlement | Comments closed