Category Archives: Section 1.16

S 01.016

9 responses to “S 01.016”

  1. ehasbrouck says:

    “a set of written or printed sheets of paper bound together in hard copy form” is far form the common-language meaning of “book”. In the absence of any definition or qualification of “bound” to exclude e.g. saddle-stitching (stapling) as a mode of binding, this definition would include almost all periodicals, even though the notice gives no clue of that, and one reading the notice would assume that only books and not magazines were included. And even if a saddle-stitched collection of sheets is deemed not to be “bound”, there is no meaningful distinction with respect to the mode of binding between magazines such as e.g. National Geographic (clearly a “book” under the settlement) and typical paperback books.

  2. I wondered for a while whether my undergraduate thesis qualified. I printed it out on acid-free paper, then inserted the pages in a clamshell binder. The university then took that copy, indexed it, and stuck it on a shelf somewhere deep deep in their offsite compact storage. “Book?”

    Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it, and thus it fails prong (a) of the test here.

    As to your question, perhaps there’s no meaningful distinction between the paperback and National Geographic in terms of binding, but doesn’t this clause take care of that problem by specifically excluding “periodicals?”

  3. ehasbrouck says:

    “doesn’t this clause take care of that problem by specifically excluding “periodicals?””

    Maybe for National Geographic, but in general no, not as long as (1) the default is that anything “bound” is a “book” (including pamphlets and “ephemera” and handwritten manuscripts and other bound collections of papers that wouldn’t fit any definition of periodical) unless it can be shown to be a periodical, and (b) the definition of periodical is overly vageue and overly narrow.

  4. Gillian Spraggs says:

    “Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it”

    This would not rescue any of us outside the US.

  5. One of the more neglected statements relating to the settlement, the letter of objection from the Spectrum Literary Agency (representing the Heinlein estate and others) , suggests that Google is attempting “to redefine copyright, in that their literature defines in-copyright work as that registered with the copyright office”. So your undergraduate thesis may not be safe from Google’s scanners after all.

  6. From the Objection by D.C. Comics: ‘Google has not made any commitment to refrain from adopting the same “copy first and negotiate later” approach for works deemed outside the scope of the proposed SA (e.g., Periodicals, unregistered works, works registered after the Notice Commencement Date).’ (p. 9 n.9)

  7. Elizabeth Townsend Gard says:

    How are they determining what counts as a “U.S. work”? This seems an unworkable definition. All works published in the U.S.? All works published by U.S. citizens? How has this been defined?

  8. The definition comes from 17 U.S.C. 101, where it depends both on the timing of publication and the domicile of the authors. It’s complex, and not always easy to check, but that’s a wart in U.S. copyright law. The settlement merely inherits that administrative difficulty.

  9. SCanzoneri says:

    It appears to me that under this definition a book with no text, such as a children’s book where the story is told entirely by illustrations, is covered by the settlement.

    However, in the revised settlement agreement children’s book illustrations have been removed from the definition of inserts. So, if a children’s book is written by one person and illustrated by another person, the illustrations are not covered by the agreement.

    What I want to know, at this point, is whether Google is agreeing to exclude from Google Books any copyrighted material not included in the settlement agreement; or is Google going to scan and display this material, and leave it up to the copyright holders to sue?

    There are a lot of books that are pretty much useless without the pictorial works that are excluded from the definition of insert. Clearly this is true of many picture books, where the story is told through the interaction of the words and illustrations; but it is also true of many works for adults. Without illustrations books on architecture and art will be of little use to readers; as will medical texts; how-to books; books on computer programs, graphic design, and photography.

    It seems to me that it is important to determine whether Google is actually going to keep subscribers to Google Books from seeing this material. If so, the “Great Google Library” will be much less useful to many subscribers and thus, less lucrative for both Google and for many rights-holders whose writing is included in the library.

    Also, doesn’t this mean that some class members (e.g., novelists) are likely to benefit far more from the settlement than other class members (e.g., picture book authors) because subscribers will not want to pay for the books that are useless without their pictorial materials ? Can the court approve a settlement where the terms of the settlement agreement will result in some class members benefiting more than others when there is no difference in the alleged damage to different groups of class members? If this was a something like a case against an airline for wrongfully adding a charge to tickets, it would be reasonable to give more money to class members who made more flights; but in this case, haven’t the plaintiffs alleged that all the class members were damaged in the same way? So how can they agree to a settlement that benefits one group of class members more than another group?

Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than thirty-fivetwenty percent (3520%) of the pages of text (not including tables of contents, indices, blank pages, title pages, copyright pages and verso pages) contain more than fiftytwenty percent (5020%) music notation and, with or without lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, or (v) Government Works, or (vi) calendars. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.

Also posted in Article 01, Settlement | Comments closed