Category Archives: Article 03

S 03

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ARTICLE 3 — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS

Also posted in Settlement | Comments closed

S 03.01

2 responses to “S 03.01”

  1. Gillian Spraggs says:

    ‘The authorizations to use Books and Inserts provided for by this Settlement Agreement’

    From whom, or what, does the authorization come? From the court?

  2. Yes, from the court. Or, to be more precise, from the copyright owners, as part of a settlement agreement entered by the court.

Digitization, Identification and Use of Books.

Also posted in Section 03.1, Settlement | Comments closed

S 03.01.1

3 responses to “S 03.01.1”

  1. Copyright law distinguishes nonexclusive licenses from transfers of ownership; the settlement makes clear that this is the former. Google does not take ownership of any copyrights

  2. In the case of orphan works, the authorization may well be effectively exclusive, since no one else will be able to obtain a license. But as a matter of formal copyright law, it’s nonexclusive.

  3. Gillian Spraggs says:

    ‘The authorizations to use Books and Inserts provided for by this Settlement Agreement’

    From whom, or what, does the authorization come? From the court?

    (Sorry to have posted this twice. I mistakenly clicked on the wrong link the first time.)

(a) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States (i) Google may, on a non-exclusive basis, Digitize all Books and Inserts obtained by Google from any source (whether obtained before or after the Effective Date), (ii) Library-Registry (Fully Participating) Agreements may provide Books and Inserts to Google in hard copy (not including microform) format to be Digitized (or in a form Digitized by or for such Fully Participating Library or Cooperating Library), and (iii) Google and Fully Participating Libraries may use such Books and Inserts as provided in this Amended Settlement Agreement and the Library-Registry (Fully Participating) Agreements. The authorizations to use Books and Inserts provided for by this Amended Settlement Agreement or a Library-Registry Agreement are not transfers of copyright ownership to such Books or Inserts, and nothing in this Amended Settlement Agreement or a Library-Registry Agreement shall operate to transfer any copyright ownership in Books or Inserts. The foregoing authorization for Google to Digitize Books and Inserts includes authorization of Google’s contractors to Digitize Books and Inserts for Google, including libraries that may Digitize Books and Inserts, or portions thereof, at Google’s request.

Also posted in Section 03.1, Section 03.1(a), Settlement | Comments closed

S 03.01.2

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(b) Identification of Digitized Books and Government Works.

Also posted in Section 03.1, Section 03.1(b), Settlement | Comments closed

S 03.01.2.1

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(i) List of Digitized Books and Government Works. As of the Notice Commencement Date, and upon Plaintiffs’ request, Google will provide Google has previously provided Plaintiffs, in a form mutually agreed, with a list of the Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized as of the Notice Commencement Date January 5, 2009 and the date each Book, Public Domain Book with a copyright date after 1922 or Government Work was Digitized by Google, and a separate list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google reasonably anticipates anticipated it will Digitize on or before the Opt-Out Deadline, in each case, to the extent that Google is permitted to do so under then-existing contracts with Metadata providers. Google and Plaintiffs will cooperate to obtain such Metadata providers’ permission for Google to provide Plaintiffs with such lists; provided, however, that the Registry shall be responsible for payment of any additional license fees to the extent required by such providers. Further, as soon as practicable, Google will provide Plaintiffs, in a form mutually agreed, would Digitize on or before May 5, 2009. On November 2, 2009, Google provided Plaintiffs with a final list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google Digitized on or before the Opt-Out Deadline. May 5, 2009.

Also posted in Section 03.1, Section 03.1(b), Section 03.1(b)(i), Settlement | Comments closed

S 03.01.2.2

One response to “S 03.01.2.2”

  1. This database is to be made available to the “Settlement Class,” not to the public at large. But the class of book copyright owners is so immense that the difference may not matter.

(ii) Books Database. As of the Notice Commencement Date, Google, with or through the Registry, will make Google has made a searchable online database available to members of the Amended Settlement Class through the Internet (1) for the purpose of identifying all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized or reasonably anticipates that it might Digitize under this Amended Settlement Agreement, and (2) for purposes of Article V (Other Settlement Benefits), identifying whether such Books, Public Domain Books with a copyright date after 1922 or Government Works have been Digitized as of the Notice Commencement Date or Google reasonably anticipates that it might Digitize such Books, Public Domain Books or Government Works prior to the Opt-Out Deadline. on or before May 5, 2009. Such database shall be referred to in this Amended Settlement Agreement as the “Books Database.” The Books Database will support supports queries by author, title, publisher, ISBN, and date of publication. The inclusion of a work within the Books Database does not, in and of itself, mean that the work is a Book within the meaning of Section 1.19 (Book).

Also posted in Section 03.1, Section 03.1(b), Section 03.1(b)(ii), Settlement | Comments closed

S 03.01.2.3

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(iii) Books. Google will also allow members of the Amended Settlement Class to submit bibliographic information (e.g., title, author, and publication date) for Books not in the Books Database.

Also posted in Section 03.1, Section 03.1(b), Section 03.1(b)(iii), Settlement | Comments closed

S 03.01.2.4

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(iv) Inserts.

Also posted in Section 03.1, Section 03.1(b), Section 3.1(b)(iv), Settlement | Comments closed

S 03.01.2.4.1

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(1) Submission. The Books Database will allow each member of the Amended Settlement Class to submit identifying information regarding his, her or its Inserts, such as the Books, Public Domain Books with a copyright date after 1922 or Government Works in which such Inserts were published, the location of such Inserts within Books, Public Domain Books with a copyright date after 1922 or Government Works and any other identifying information about such Inserts (e.g., whether the Insert is an introduction, a foreword, etc.).

Also posted in Section 03.1, Section 03.1(b), Section 3.1(b)(iv), Section 3.1(b)(iv)(1), Settlement | Comments closed

S 03.01.2.4.2

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(2) Insert Identification. For content that may be an Insert, the Books Database will allow any Person who might be a member of the Amended Settlement Class to submit a digital copy of his, her or its content that may be an Insert or to otherwise identify such content that may be an Insert, and Google will perform searches to identify Books, Public Domain Books with a copyright date after 1922 or Government Works, if any, that contain such submitted content. If Google identifies any Books, Public Domain Books with a copyright date after 1922 or Government Works that may contain such submitted content, Google will notify such Person of such Books, Public Domain Books with a copyright date after 1922 or Government Works in order to enable him, her or it to determine whether the submitted content is an Insert in such Books, Public Domain Books with a copyright date after 1922 or Government Works and the pages on which such content appears. Google shall have no liability for failure to identify an Insert under this Section 3.1(b)(iv)(2) (Insert Identification).

Also posted in Section 03.1, Section 03.1(b), Section 3.1(b)(iv), Section 3.1(b)(iv)(2), Settlement | Comments closed

S 03.02

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Initial Display and No Display Book Classification.

Also posted in Section 3.2, Settlement | Comments closed

S 03.02.1

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(a) General Guidelines. Pursuant to Section 3.2(b). (Display/No Display Classification), Google and the Registry will classify all Books in one of two categories, either Display Books, as described in Section 3.3 (Display Books), or No Display Books, as described in Section 3.4 (No Display Books).

Also posted in Section 3.2, Section 3.2(a), Settlement | Comments closed

S 03.02.2

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(b) Display/No Display Classification. Google will initially classify a Book as No Display if it is determined to be Commercially Available as of the Notice Commencement Date, and Display if it is determined not to be Commercially Available as of the Notice Commencement Date. A Rightsholder, Google, or the Registry (pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), may change a Book’s classification as Display or No Display as set forth in this Article III (Google Book Search – Rights, Benefits and Obligations).

Also posted in Section 3.2, Section 3.2(b), Settlement | Comments closed

S 03.02.3

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(c) Notification of Display/No Display Classification. The Books Database will identify whether a Book has been classified as a Display Book or a No Display Book.

Also posted in Section 3.2, Section 3.2(c), Settlement | Comments closed

S 03.02.4

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(d) Commercial Availability, In Print/Out of Print and Public Domain Determination.

Also posted in Section 3.2, Section 3.2(d), Settlement | Comments closed

S 03.02.4.1

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(i) Basis for Determination. Google shall determine whether a Book is Commercially Available or not Commercially Available based on an its analysis of multiple third-party databases as well as an its analysis of the Book’s retail availability based on information that is publicly available on the Internet to it on the Internet. Google will use third-party databases from a range of United States, Canadian, United Kingdom, and Australian sources that can be obtained on fair and commercially reasonable terms. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States Commercially Available. When analyzing information that is publicly available to it on the Internet, Google will determine retail availability by consulting various sources to determine whether the Book is available for sale new Commercially Available. Each of these sources may contain errors; by combining information from multiple sources, Google , however shall use commercially reasonable efforts to determine whether a Book is Commercially Available or is not Commercially Available in a manner that is using a methodology reasonably agreed to by Google and the Registry that is designed to minimize the overall error rate. All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available. Rightsholders may provide information directly to Google that a Book is being offered for sale new through one or more then-customary channels of trade in the United States Commercially Available when they submit their Claim Form Forms, through the Books Database or, at any time after such submission, to Google or the Registry. When Rightsholders provide such information to Google, unless Google receives such information from Rightsholders or the Registry or Rightsholders otherwise assert that their Books are Commercially Available, such Books promptly shall be classified as Commercially Available. If Google reasonably believes that the such information or assertion is inaccurate, the Book shall be determined to be Commercially Available and Google shall change then Google may challenge the classification of the Book to a No Display Book within thirty (30) days of receipt of such information pursuant to Article IX (Dispute Resolution).

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(i), Settlement | Comments closed

S 03.02.4.1.1

2 responses to “S 03.02.4.1.1”

  1. Diana Kimpton says:

    This clause is completely unworkable. It is impossible for an automated database system such as the one at the heart of the Google Book Settlement to indentify which books contain the same Principal Work. Different editions have totally unrelated ISBNs and may not even have the same title. I have been in touch with the database people about this and been told, ” The of linking editions is something that is continually being worked on. As mentioned in the last answer, when you file a claim as the rightsholder to a book, whether it be deemed commercially unavailable or available, you control the operative settings to the book. You may direct Google want display settings they are allowed to use for the book. ” (typo is theirs, not mine)

    I’ve also spoken to them by phone and got the impression they don’t think that linking the editions is very important. When I quoted this clause, there was a long silence followed by a promise to find out more and phone me back. They haven’t. I suspect that’s because they haven’t got an answer.

    Examining the database shows that the non-working of this clause leaves editions of some very high profile books deemed to be not commercially available although it’s easy to buy other editions in the shops.

  2. Read 3.2(d)(iii) Mistakes and it’s easy to see why Google doesn’t view this as a priority matter.

(1) In-Copyright Principal Work. If a Book’s Principal Work is not in the public domain under the Copyright Act in the United States and that Book is Commercially Available, then any other Book that has the same Principal Work (such as a previous edition) is also deemed to be Commercially Available, whether or not such other Book is at the time in question also Commercially Available.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(i), Section 3.2(d)(i)(1), Settlement | Comments closed

S 03.02.4.1.2

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(2) Public Domain Principal Work. Public Domain Principal Work. If a Book’s Principal Work is in the public domain under the Copyright Act in the United States, and that Book is Commercially Available and also contains an Insert (i.e., content that qualifies as an Insert and is not in the public domain under the Copyright Act in the United States), then any earlier edition of such Book that contains such Insert is also deemed to be Commercially Available.

Also posted in Definitions, Section 3.2, Section 3.2(d), Section 3.2(d)(i), Section 3.2(d)(i)(2) | Comments closed

S 03.02.4.2

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(ii) In-Print/Out-of-Print. Google’s initial determination of whether or not a Book is Commercially Available will be used to initially classify Books as “In-Print” or “Out-Of-Print,” as such classifications are defined in the Author-Publisher Procedures, and only for purposes of the Settlement. Google shall provide the Registry with the determination as to whether a Book is Commercially Available as of the Notice Commencement Date and thereafter from time to time. Classification of Books as In-Print or Out-Of-Print pursuant to the terms of the Author-Publisher Procedures shall be the responsibility of the Registry. If the Registry re-classifies a Book as Out-Of-Print, the Registry will direct Google to change the classification of the Book to a Display Book, which Google shall do within thirty (30) days unless the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders), expressly requests that the Book be treated as a No Display Book. If the Registry reclassifies a Book as In-Print, the Registry will direct Google to change the classification of the Book to a No Display Book only upon the express request of the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders).

Also posted in Section 3.2, Section 3.2(d)(ii), Settlement | Comments closed

S 03.02.4.3

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(iii) Mistakes. If a Book was mistakenly determined by Google not to be Commercially Available, then the Rightsholder of the Book may notify Google, or may authorize the Registry to notify Google, of such mistaken determination. To verify the claim, the Registry will provide, upon Google’s reasonable request, information supporting any assertion by the Rightsholder of the Book that the Book is Commercially Available. If the Rightsholder demonstrates asserts that the Book is Commercially Available, then, as Google’s sole obligation and the Rightsholder’s sole remedy (subject to Section 3.2(d)(iv) (Disputes)), Google promptly shall correct the determination as to whether the Book is Commercially Available within thirty (30) days.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(iii), Settlement | Comments closed

S 03.02.4.4

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(iv) Disputes. The Registry and Google shall work together to resolve any disputes regarding the determination of whether a Book is Commercially Available. If they are unable to do so, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). If the Arbitrator, in such dispute, finds in favor of the Rightsholder, then Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including arbitration costs.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(iv), Settlement | Comments closed

S 03.02.4.5

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(v) Safe Harbor Public Domain Determination.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(v), Settlement | Comments closed

S 03.02.4.5.1

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(1) Safe Harbor Process. Attachment E (Public Domain) sets forth the process by which Google may determine whether a book is a Public Domain Book for the sole purpose of determining whether Section 3.2(d)(v)(3) (Safe Harbor) is applicable. Attachment E (Public Domain) may be amended by Google and the Registry from time to time if Google develops and provides to the Registry additional or different processes for determining whether a book is a Public Domain Book. If the Registry reasonably believes that such processes do not identify Public Domain Books accurately, then the Registry shall notify Google thereof. Google shall respond to such notice within thirty (30) days, either by modifying such process or by explaining how such process can reasonably identify Public Domain Books accurately. Any disputes as to whether the process can reasonably identify Public Domain Books for purposes of determining the applicability of Section 3.2(d)(v)(3) (Safe Harbor) shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(1), Settlement | Comments closed

S 03.02.4.5.2

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(2) List. Google shall identify to the Registry books that it has determined to be Public Domain Books pursuant to the process set forth in Attachment E (Public Domain) and for which Google wants the safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such book, Google shall provide the supporting reasons and information that Attachment E (Public Domain) requires. At any time, the Registry or a Rightsholder may notify Google that it or a Rightsholder believes that any such book is not a Public Domain Book (with supporting reasons and information) and, upon receipt of such notice, Google shall promptly review the supporting reasons and information and shall either (a) re-classify the Book as in copyright or (b) notify the Registry and any notifying Rightsholder that Google continues to believe the book is a Public Domain Book. Any disputes with respect to whether a book is a Public Domain Book shall be resolved pursuant to Article IX (Dispute Resolution); in any such dispute, the burdens of proof as to whether the book is in copyright or in the public domain under the Copyright Act in the United States (and the allocation and shifting of such burdens) shall be as if the action were one for copyright infringement brought under the Copyright Act.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(2), Settlement | Comments closed

S 03.02.4.5.3

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(3) Safe Harbor. If, with respect to a book, Google has followed the process set forth in Attachment E (Public Domain) and neither the Registry nor a Rightsholder has notified Google pursuant to Section 3.2(d)(v)(2) (List), then Google may treat such book as if it is in the public domain under the Copyright Act in the United States for the purposes of this Amended Settlement Agreement, and Google will have no liability or obligation (a) for any use of such book to the extent that such use would be authorized under this Amended Settlement Agreement if such book were a Display Book or (b) for providing downloadable versions of such book. If the Registry or a Rightsholder has notified Google pursuant to Section3.2(d)(v)(2) (List), Google otherwise obtains actual knowledge that a Book is not in the public domain under the Copyright Act in the United States, or a Book is determined to be in copyright pursuant to Article IX (Dispute Resolution), then, commencing five (5) Business Days from the date of such notice, knowledge or determination, the foregoing limitation on Google’s liability or obligation will not apply.

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(3), Settlement | Comments closed

S 03.02.5

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(e) Change of Display/No Display Classification.

Also posted in Section 3.2, Section 3.2(e), Settlement | Comments closed

S 03.02.5.1

2 responses to “S 03.02.5.1”

  1. Just noticed the following:

    The Registry shall be able to direct Google to change the classification of a Book to a Display Book or a group of Books to Display Books.

    No limitation is placed on this power that I can see. In 3.2(d)(ii) it states that the Registry may do this if it decides a book is out of print, but here there appears to be no qualification of time or reason, or any requirement that the Registry notify the rights-holder(s) (or the UWF).

  2. I have just found the crucial limitation: in 6.7:

    In no event, however, may the Registry direct Google to change the classification of a Book, include or exclude a Book or Insert in or from any Display Use, or take any other action, that is contrary to such Book or Insert Rightsholder’s express direction

(i) Change Requests by Rightsholders. For all Books, the Registered Rightsholder of the Book or the Registry, for unclaimed Books, the Unclaimed Works Fiduciary (subject to the last sentence of this Section 3.2(e)(i) (Change Requests by Rightsholders) may direct Google or the Registry to change the classification of a Book or group of Books to a Display Book or Display Books or to a No Display Book or No Display Books or to include in, or, pursuant to Section 3.5 (Right to Remove or Exclude), exclude any or all of his, her or its Books or group of Books from, one or more of the Display Uses. In the event the Rightsholder directs that any of his, her or its Books be included in one or more of the Display Uses, (1) the provisions of Section 3.5(b)(iii) (Coupling Requirement) will apply to such Books, (2) such Books will be considered Display Books, and (3) such Display Uses will be deemed authorized. Google will implement a direction to change the classification of a Book within thirty (30) days after Google receives notice of such direction. The Registry shall be able to direct Google to change the classification of a Book to a Display Book or a group of Books to Display Books. A direction to change the classification of a Book to a No Display Book or a group of Books to No Display Books, however, must be initiated by the Rightsholder of the Book or Books.

Also posted in Section 3.2, Section 3.2(e), Section 3.2(e)(i), Settlement | Comments closed

S 03.02.5.2

One response to “S 03.02.5.2”

  1. Gillian Spraggs says:

    But what if the book has been previously excluded from Display uses by the rights-holder under Section 3.5(b)(i)? Can Google use Section 3.2(e)(ii) to reopen the matter? This is important, since it would mean, effectively, that rights-holders might be repeatedly importuned on this matter indefinitely: with all sorts of scope for messages going astray, etc.

(ii) Change Requests by Google. At any time after one (1) year from the Final Approval Date, Google shall have the right to request that the classification of a Book be changed to a Display Book if Google believes that the Book is not Commercially Available at that time, or if Google believes that a mistake was made in initially determining the Book to be Commercially Available. Upon receipt of such a request from Google, the Registry shall have one hundred and twenty (120) days to attempt to contact the Rightsholder of the Book to inform such Rightsholder of such request and/or collect evidence with respect to whether the Book is Commercially Available. The Registry shall notify Google if it is able to contact such Rightsholder and will inform Google whether such Rightsholder wants the Book to remain classified as a No Display Book. If the Rightsholder of the Book provides evidence that the Book is Commercially Available or otherwise directs Google that he, she or it wants the Book to remain a No Display Book, or if the Registry otherwise determines that the Book is Commercially Available, then the Registry will notify Google, and Google will not change the classification of the Book to a Display Book at that time on that basis. If, by the end of the one hundred twenty (120)-day period, the Registry is unable to contact the Rightsholder or to find accurate evidence regarding whether the Book is Commercially Available, then the Registry shall inform Google and Google may change the classification of the Book to a Display Book, subject to Section 3.5 (Right to Remove or Exclude).

Also posted in Section 3.2, Section 3.2(e), Section 3.2(e)(ii), Settlement | Comments closed

S 03.03

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Display Books.

Also posted in Section 3.3, Settlement | Comments closed

S 03.03.1

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(a) Display and Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude) and Section 4.3 (Preview Uses), Google may make Display Uses and Non-Display Uses of all Display Books; provided, however, that Google will not make Display Uses of any Book that Google has classified as not Commercially Available until the later of the Effective Date or sixty (60) days after notifying the Registry that Google has classified such Book as not Commercially Available. If, within such sixty (60)-day period, a dispute under Section 3.2(d)(iv) (Disputes) arises between the Rightsholder or the Registry and Google regarding whether such Book is Commercially Available, Google will not make Display Uses of the Book unless and until Google prevails under Article IX (Dispute Resolution).

Also posted in Section 3.3, Section 3.3(a), Settlement | Comments closed

S 03.03.2

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(b) Inserts in Display Books. If a Book is classified as a Display Book, then, subject to Section 3.5 (Right to Remove or Exclude), Google may make Display Uses and Non-Display Uses of all Inserts in such Book. If a Book is classified as a No Display Book, then all Inserts in that Book are also subject to Section 3.4 (No Display Books).

Also posted in Section 3.3, Section 3.3(b), Settlement | Comments closed

S 03.03.3

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(c) Inserts in Government Works and Public Domain Books. Google may use all Inserts in Government Works and Public Domain Books in connection with any uses of such Government Works and Public Domain Works in Google Products and Services, subject to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models).

Also posted in Section 3.3, Section 3.3(c), Settlement | Comments closed

S 03.03.4

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(d) Accommodation of Print Disabilities. Google may provide the Display Uses in a manner that accommodates users with Print Disabilities so that such users have a substantially similar user experience as users without Print Disabilities.

Also posted in Section 3.3, Section 3.3(d), Settlement | Comments closed

S 03.03.5

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(e) Change to No Display. Rightsholders of Books may, pursuant to Section3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a Display Book to a No Display Book.

Also posted in Section 3.3, Section 3.3(e), Settlement | Comments closed

S 03.03.6

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(f) Author Landing Page Links. If, in any Display Use of a Book in GBS for which Display Use is authorized pursuant to this Amended Settlement Agreement, Google presents any web page (i) dedicated to an individual author that includes hyperlinks to that author’s Books and other features, or (ii) with content from a Book that includes a hyperlink to the website of the publisher of such Book, then Google will also include on such page a hyperlink (or similar or appropriate technology) to that author’s website, in either case only if (1) the Registry provides Google with such hyperlink, and (2) such website promotes the author’s works, or provides relevant information about the author, and is otherwise appropriate for such purposes; provided that Google may remove any such hyperlink if Google becomes aware that such hyperlink no longer functions to link to such website.

Also posted in Section 3.3, Section 3.3(f), Settlement | Comments closed

S 03.03.7

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(g)Display Use Attributes. With respect to their Display Books, Google and the Rightsholders may negotiate and Rightsholders may authorize Google to modify or remove the restrictions that are placed on Google in Section 4.1(d) (Basic Features of Institutional Subscriptions) and 4.2(a) (Basic Features of Consumer Purchase), and comparable restrictions that may apply to additional Revenue Models that may be agreed pursuant to Section 4.7 (Additional Revenue Models).

Also posted in Section 3.3, Section 3.3(g), Settlement | Comments closed

S 03.04

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No Display Books.

Also posted in Section 3.4, Settlement | Comments closed

S 03.04.1

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(a) Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude), Google may make Non-Display Uses of all No Display Books.

Also posted in Section 3.4, Section 3.4(a), Settlement | Comments closed

S 03.04.2

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(b) Change to Display. Rightsholders of Books may, pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a No Display Book to a Display Book, or to include any or all of their No Display Books in one or more of the Display Uses, in which case such Books will then be considered to be Display Books, and Article IV (Economic Terms for Google’s Use of Books) shall apply..

Also posted in Section 3.4, Section 3.4(b), Settlement | Comments closed

S 03.05

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Right to Remove or Exclude.

Also posted in Section 3.5, Settlement | Comments closed

S 03.05.1

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(a) Right to Remove.

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

S 03.05.1.2

Comments are closed.

(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 Section 3.5, Section 3.5(a), Section 3.5(a)(ii), Settlement | Comments closed

S 03.05.1.3

Comments are closed.

(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 Section 3.5, Section 3.5(a), Section 3.5(a)(iii), Settlement | Comments closed

S 03.05.2

Comments are closed.

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

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

S 03.05.2.1.1

Comments are closed.

(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 Section 3.5, 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 Section 3.5, Section 3.5(b), Section 3.5(b)(ii), Settlement | Comments closed

S 03.05.2.3

Comments are closed.

(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 Section 3.5, Section 3.5(b), Section 3.5(b)(iii), Settlement | Comments closed

S 03.05.2.4

Comments are closed.

(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 Section 3.5, Section 3.5(b), Section 3.5(b)(iv), Settlement | Comments closed

S 03.05.2.5

Comments are closed.

(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 Section 3.5, Section 3.5(b), Section 3.5(b)(v), Settlement | Comments closed

S 03.05.2.6

Comments are closed.

(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 Section 3.5, Section 3.5(b), Section 3.5(b)(vi), Settlement | Comments closed

S 03.05.2.7

Comments are closed.

(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 Section 3.5, Section 3.5(b), Section 3.5(b)(vii), Settlement | Comments closed

S 03.05.3

Comments are closed.

(c) Take-Down or Transfer Requests.

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

S 03.05.3.1

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Settlement | Comments closed

S 03.05.3.1.1

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(1), Settlement | Comments closed

S 03.05.3.1.2

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(2), Settlement | Comments closed

S 03.05.3.1.3

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(3), Settlement | Comments closed

S 03.05.3.1.4

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(4), Settlement | Comments closed

S 03.05.3.1.5

Comments are closed.

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

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

S 03.05.3.1.6

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(6), Settlement | Comments closed

S 03.05.3.1.7

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(7), Settlement | Comments closed

S 03.05.3.2

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Settlement | Comments closed

S 03.05.3.2.1

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(1), Settlement | Comments closed

S 03.05.3.2.2

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(2), Settlement | Comments closed

S 03.05.3.2.3

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(3), Settlement | Comments closed

S 03.05.3.2.4

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(4), Settlement | Comments closed

S 03.05.3.2.5

Comments are closed.

(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 Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(5), Settlement | Comments closed

S 03.06

Comments are closed.

Technical Adaptations. Except with respect to Books Removed under Section 3.5(a) (Right to Remove), Google may make technical adaptations to (but not adapt or alter the content of) all Books (whether Display or No Display) and Inserts as reasonably necessary to preserve, maintain, manage, and keep technologically current its copies of the Books and Inserts.

Also posted in Section 3.6, Settlement | Comments closed

S 03.07

Comments are closed.

Contemplated Rightsholder Services.

Also posted in Section 3.7, Settlement | Comments closed

S 03.07.1

Comments are closed.

Obligation. Google shall implement both of the Contemplated Rightsholder Services (i.e., Institutional Subscriptions and Consumer Purchases) within five (5) years after the Effective Date. If Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, Google shall implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services. Google’s sole obligation and the sole remedy for any failure under this Section 3.7(a) (Obligation) is set forth in Sections 3.7(b) (Failure to Provide Contemplated Rightsholder Services) through (d) (Third-Party Required Library Services Provider).

Also posted in Section 3.7, Section 3.7(a), Settlement | Comments closed

S 03.07.2

Comments are closed.

(b) Failure to Provide Contemplated Rightsholder Services. If (i) Google fails to implement either of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, Google’s right to make any and all Non-Display Uses and Display Uses shall terminate ninety (90) days after notice to Google by the Registry, except as may be authorized by the Registry; provided, however, that if Google subsequently offers one of the Contemplated Rightsholder Services, Google’s rights to make any and all Non-Display Uses and Display Uses shall be immediately re-instated. Notwithstanding the foregoing, if Google believes that any actions or inactions of the Registry have proximately caused Google to fail to provide the Contemplated Rightsholder Services, then Google will provide the Registry with notice describing the Registry’s actions or inactions within such ninety (90)-day notice period, and the Registry’s notice of termination will have no effect and Google may continue to make any and all Non-Display Uses and Display Uses. Any dispute over whether any action or inaction of the Registry has proximately caused Google to fail to provide the Contemplated Rightsholder Services shall be subject to the dispute resolution provisions of Article IX (Dispute Resolution) and Google may make any and all Non-Display and Display Uses pending the Decision of the Arbitrator.

Also posted in Section 3.7, Section 3.7(b), Settlement | Comments closed

S 03.07.3

Comments are closed.

(c) Additional Contemplated Rightsholder Services Provider. In addition, if (i) Google fails to implement both of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, the Registry on the one hand and/or the Fully Participating Libraries and the Cooperating Libraries on the other hand, acting reasonably, may work to find one or more provider(s) that can provide Consumer Purchases, Institutional Subscriptions and/or the new additional Revenue Models listed in Section 4.7 (New Additional Revenue Models), and/or Required Library Services, on substantially the same terms described in this Amended Settlement Agreement. Any such arrangement shall be subject to the consent of the Registry, on the one hand, and the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, on the other hand (but in the case of the Fully Participating Libraries and the Cooperating Libraries only as to Library Scans), which consent of the Registry and the Fully Participating Libraries and the Cooperating Libraries shall not be unreasonably withheld or delayed (any such provider is referred to in this Amended Settlement Agreement as an “Additional Contemplated Rightsholder Services Provider”). If an Additional Contemplated Rightsholder Services Provider is identified and the foregoing required consent is obtained, then Google will provide such Additional Contemplated Rightsholder Services Provider with Digital Copies of the Library Scans (so long as the Digital Copies are not restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) and Digital Copies of other Books that may be provided by Google without restriction. Such Digital Copies may be used by the Additional Contemplated Rightsholder Services Provider solely to provide the Contemplated Rightsholder Services and/or the new additional Revenue Models listed in Section 4.7 (New Additional Revenue Models) and/or Required Library Services in accordance with the terms of this Amended Settlement Agreement and, in addition, with respect to Digital Copies of Library Scans only, the terms of Google’s agreements with each of the Fully Participating Libraries and the Cooperating Libraries. Such Additional Contemplated Rightsholder Services Provider is, in connection with any Claim arising out of its making available Digital Copies of Books, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).

Also posted in Section 3.7, Section 3.7(c), Settlement | Comments closed

S 03.07.4

Comments are closed.

(d) Third-Party Required Library Services Provider. If Google provides a Digital Copy of the Library Scans to a Third-Party Required Library Services Provider under Section 7.2(e) (Required Library Services Requirement), then the Contemplated Rightsholder Services may also be provided by the Third-Party Required Library Services Provider in addition to the Required Library Services, and Google will have no obligation to provide Contemplated Rightsholder Services and will have no liability or obligation with respect to Contemplated Rightsholder Services provided by the Third-Party Required Library Services Provider.

Also posted in Section 3.7, Section 3.7(d), Settlement | Comments closed

S 03.07.5

6 responses to “S 03.07.5”

  1. What kind of editorial discretion does Google contemplate using to exclude books from the service? Per the language of the passage, this would exclude legal reasons to exclude materials (ie, child pornography, etc). I have additional thoughts here, but am curious as to what others think.

  2. David Brake says:

    If nothing else there should be a requirement on the registry to make public the exclusion of any book or part of a book.

  3. Note: Google’s Alexander Macgillivray provided some explanations here.

  4. AMac has promised that Google will make public the list of books they remove, and stated that they don’t currently plan to remove any (but just want to preserve their right to). These aren’t in the settlement and enforceable, but they are on the public record.

  5. […] issue that the Settlement Agreement fails to adequately address. I will pose these questions at the Public Index, and hope that they might be further addressed at upcoming conferences discussing the Settlement. I […]

(e) Google’s Exclusion of Books. Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google. Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.

Also posted in Section 3.7, Section 3.7(e), Settlement | Comments closed

S 03.07.5.1

Comments are closed.

(i) Digital Copy of Excluded Books. Google will provide to the Registry a Digital Copy of any Book that Google excludes for editorial reasons. The Registry may, subject to Section 3.5 (Right to Remove and or Exclude) engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement)) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releases).

Also posted in Section 3.7, Section 3.7(e), Section 3.7(e)(i), Settlement | Comments closed

S 03.08

Comments are closed.

Effect of Other Agreements and Changes in Law.

Also posted in Section 3.8, Settlement | Comments closed

S 03.08.1

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(a) Effect of Other Agreements. The Registry (and any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) will extend economic and other terms to Google that, when taken as a whole, do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the Registry (or any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) when such authorizations (i) are made within ten (10) years of the Effective Date and (ii) include rights granted from a significant portion of Rightsholders other than Registered Rightsholders. With respect to any such authorization, the Registry promptly will provide Google with notice that an authorization has been granted with sufficient detail of the terms to allow Google to obtain the benefits of such authorization pursuant to this Section 3.8(a) (Effect of Other Agreements).

Also posted in Section 3.8, Section 3.8(a), Settlement | Comments closed

S 03.08.2

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3.8 (b) Effect of Changes in Law. Google will be able to take advantage of any tion allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Amended Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b) 3.8 (Effect of Changes in Law).

Also posted in Section 3.8, Section 3.8(b), Settlement | Comments closed

S 03.09

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Distribution Arrangements. When Google may make any Snippet Display of a Book under this Amended Settlement Agreement, Google may also allow third parties that have entered into agreements with Google (a) to display snippets served by Google on their websites in response to user interactions on their websites and (b) to cache temporarily snippets transmitted by Google as described in the foregoing clause (a) for future display on their websites in response to user interactions on their websites.

Also posted in Section 3.9, Settlement | Comments closed

S 03.10

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Specific Prohibitions.

Also posted in Section 3.10, Settlement | Comments closed

S 03.10.1

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(a) Prohibitions on Display. Except as expressly permitted by this Amended Settlement Agreement or otherwise by Registered Rightsholders or the Registry ,for unclaimed works, by the Unclaimed Works Fiduciary, Google shall not (i) display any Expression from Books or Inserts; (ii) display any Expression from Books or Inserts in a manner that would constitute a derivative work of such Books or Inserts under the Copyright Act; or (iii) display summaries or abstracts of, or compilations from, Books or Inserts created using Digital Copies.

Also posted in Section 3.10, Section 3.10(a), Settlement | Comments closed

S 03.10.2

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(b) Prohibitions on Linking. Except as expressly permitted by this Amended Settlement Agreement or otherwise by Registered Rightsholders or, for unclaimed Books, by the Unclaimed Works Fiduciary, Rightsholders or the Registry, Google shall not create hyperlinks to Preview Use Book pages permitted by the terms of this Amended Settlement Agreement from revenue generating products or services if the effect of those links in the aggregate is to detract from revenue under this Amended Settlement Agreement that the Rightsholder(s) of such Book(s) would realize if the links did not exist, unless such services or products (i) are search services (including, for example, Google Web Search, Google Earth and other Google services that show search results by browsing instead of by entering a search query), or (ii) have the effect of making discovery of Books easier, more efficient, more widespread, or more useful. If Plaintiffs or any Rightsholders believe that this Section 3.10(b) (Prohibitions on Linking) has been violated, as Plaintiffs’ and Rightsholders’ sole remedy and Google’s sole obligation, the Registry will notify Google of the existence of such links and if it is agreed or an Arbitrator, pursuant to Article IX (Dispute Resolution), determines that this Section 3.10(b) (Prohibitions on Linking) has been violated, Google will expeditiously remove said links or come to a separate agreement with the Registry to permit them.

Also posted in Section 3.10, Section 3.10(b), Settlement | Comments closed

S 03.10.3

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(c) Integrity of the Text.

Also posted in Section 3.10(c), Settlement | Comments closed

S 03.10.3.1

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(i) No Alteration of Text. Except as expressly authorized by the Registered Rightsholder or the Registry, for unclaimed works, by the Unclaimed Works Fiduciary, or in this Amended Settlement Agreement, Google may not intentionally alter the text of a Book or Insert when displayed to users. Changes in the formatting or presentation of text are not considered to be alteration of the text, e.g., for the Accommodated Service.

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(i), Settlement | Comments closed

S 03.10.3.2

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(ii) Hyperlinks and Book Annotations. Except as expressly authorized by the Registered Rightsholder or the Registry , for unclaimed Books, by the Unclaimed Works Fiduciary, Google may not add hyperlinks to any content within a page of a Book or facilitate the sharing of Book Annotations, except that Google may:

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Settlement | Comments closed

S 03.10.3.2.1

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(1) add hyperlinks within the Book for specific internal references from text contained within the Book to other sections of the Book, such as from a table of contents entry to the referenced page, from a page number in the index to the page, or from internal references in the Book to footnotes, endnotes, bibliographical material, appendices, figures, and illustrations,

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(1), Settlement | Comments closed

S 03.10.3.2.2

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(2) add a hyperlink from an explicit reference in the Book to an online version of an external source cited in a footnote, endnote, or bibliographical material,

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(2), Settlement | Comments closed

S 03.10.3.2.3

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(3) add a hyperlink to a URL that the Rightsholder included in a Book,

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(3), Settlement | Comments closed

S 03.10.3.2.4

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(4) temporarily highlight or otherwise emphasize words in response to a user’s action, so long as such highlight or emphasis appears only on the user’s monitor and/or on a page printed by such user, and

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(4), Settlement | Comments closed

S 03.10.3.2.5

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(5) Subject to the Rightsholder’s right to exclude its Books from the Book Annotation sharing feature, allow a user to make Book Annotations for the user’s own personal use and to share those Book Annotations with a limited number of other users, provided that the feature that enables Book Annotations within Google Products and Services is subject to the following limitations:

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Settlement | Comments closed

S 03.10.3.2.5.1

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a) Book Annotations may not be shared with the general public, and

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(a), Settlement | Comments closed

S 03.10.3.2.5.2

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b) Book Annotations may not be accessible to any user pressly chosen to access it either by active selection or by participation in a group such as a class for which this feature is used, and

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(b), Settlement | Comments closed

S 03.10.3.2.5.3

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c) Book Annotations may not be displayed with the Book for other users who do not already have the right to view the Book, and

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(c), Settlement | Comments closed

S 03.10.3.2.5.4

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d) for sharing of a Book Annotation in connection with chase, the user may only share such Book Annotation with no more than twenty-five (25) individuals and the user must identify (e.g., by name, login or user id) each individual with whom such Book Annotation will be shared, and

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(d), Settlement | Comments closed

S 03.10.3.2.5.5

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e) for sharing of a Book Annotation as part of an Institutional Subscription, the user may only share such Book Annotation with the following other users of such Institutional Subscription: instructors and students in a single academic course sharing such Book Annotation in connection with such course during an academic year or with students of the same course during a subsequent academic year, and employees of the subscriber of the Institutional Subscription sharing such Book Annotation in connection with a discrete work project during the course of that project.

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(e), Settlement | Comments closed

S 03.10.3.3

One response to “S 03.10.3.3”

  1. Gillian Spraggs says:

    A rights-holder may exclude works from advertising uses, as stated above but I can find no provision for a rights-holder to state objections to certain kinds of advertisement.

    It was reported last November that Google Adsense served anti-gay marriage ads to a large number of gay websites. In May this year Google’s subsidiary Doubleclick (apparently) served an anti-gay marriage ad to at least one journal on LiveJournal.

    There is nothing in the Settlement Agreement to prevent Google from serving similar ads against, say, novels by James Baldwin or poems by Adrienne Rich.

    Endless similar examples might be imagined.

(iii) Advertising Content. Google may not place on, behind or over the contents of a Book or portion thereof (including on Preview Use pages or Snippet Display pages), as displayed to a user, any pop-up, pop-under, or any other types of advertisements or content of any kind. In addition to a Rightsholder’s right to exclude one or more of his, her or its Books from Advertising Uses pursuant to Section 3.5(b)(i) (Right to Exclude), the Registry is authorized to act on behalf of Rightsholders that are not Registered Rightsholders to Unclaimed Works Fiduciary may exclude from Advertising Uses one or more Unclaimed Books of such Rightsholders if Google displays animated, audio or video advertisements in conjunction with those Books and the Registry determines that exclusion from such Advertising Uses is in the best interests of such Rightsholders. of such unclaimed Books.

Also posted in Section 3.10, Section 3.10(c), Section 3.10(c)(iii), Settlement | Comments closed

S 03.11

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Hosted Version for Rightsholders. Upon request by a Rightsholder of a Book, Google will provide a hosted version of such Book for use in conjunction with such Rightsholder’s website, similar to Google’s hosted version of Books in the Google Partner Program. Such hosted version will contain the “look and feel” of the Rightsholder’s website with minimal Google branding, which branding may be tailored by the Rightsholder upon the Rightsholder’s further reasonable request.

Also posted in Section 3.11, Settlement | Comments closed

S 03.12

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Use of Digital Copies. Except as permitted by Sections 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e) (Google’s Exclusion of Books), 7.2(b)(ix) (Other Uses), 7.2(e)(ii) (Third-Party Required Library Services Provider) or 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), neither Rightsholders nor the Registry may authorize any Person to use Digital Copies of their Books or Inserts made by or for Google without Google’s consent; provided that Rightsholders may authorize any Fully Participating Library to use Digital Copies of their Books or Inserts in such Fully Participating Library’s LDC consistent with such Fully Participating Library’s Digitization Agreement with Google.

Also posted in Section 3.12, Settlement | Comments closed

S 03.13

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Communication of Rightsholder Directions to Google. Rightsholders shall communicate to the Registry or, at their election and provided that Google implements an Online interface for such purpose, directly to Google, all directions for Removal, exclusion, inclusion, and pricing, and any other directions for Books and Inserts provided for in this Amended Settlement Agreement. If, however, a Rightsholder communicates directly with Google, then Google shall, before implementing any such direction, (a) notify the Registry and provide the Registry with the Rightsholder’s contact information and direction and (b) subject to Section 13.2 (Validating and Challenging Claims), receive confirmation from the Registry that (i) for Books, the Person communicating with Google is an appropriate Rightsholder under the Author-Publisher Procedures, and (ii) Google is authorized to implement such direction under this Amended Settlement Agreement, including (for Books) the Author-Publisher Procedures. The Registry will promptly respond to any such notification and request for confirmation from Google and, in any event, within the same period of time as the Registry typically responds to requests directly from Rightsholders to the Registry.

Also posted in Section 3.13, Settlement | Comments closed

S 03.14

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Advertising Uses. Google may display advertisements on Preview Use pages and other Online Book Pages (“Advertising Uses”). Advertising on general search results pages in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be an “Advertising Use,” even if a single Book is the sole search result of a given search on a search results page. Except as set forth in Section 3.10(c)(iii) (Advertising Content) and Section 3.5(b)(i) (Right to Exclude), this Amended Settlement Agreement does not otherwise limit Google’s right to display advertising anywhere on Google Products and Services.

Also posted in Section 3.14, Settlement | Comments closed

S 03.15

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Extent of Rights and Authorizations.

Also posted in Section 3.15, Settlement | Comments closed

S 03.15.1

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(a) Books. A Book Rightsholder’s rights and Google’s authorizations under this Amended Settlement Agreement apply to all of the Protected Expression of such Rightsholder contained in a Book in which such Rightsholder holds a Copyright Interest.

Also posted in Section 3.15, Section 3.15(a), Settlement | Comments closed

S 03.15.2

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(b) Inserts. A Rightsholder of an Insert has no rights under this Amended Settlement Agreement with respect to any Book or any portion of any Book in which such Insert appears, other than the Insert itself, e.g., a Rightsholder of an Insert has no right to Remove the Book in which his, her or its Insert appears, or to authorize or to prohibit Display Uses of the Book in which his, her or its Insert appears.

Also posted in Section 3.15, Section 3.15(b), Settlement | Comments closed

S 03.15.3

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(c) Other Content. If content (e.g., text or images) in a Book is (i) in the public domain under the Copyright Act in the United States or (ii) subject to a Copyright Interest not owned by any Rightsholder of such Book or by any Rightsholder of any Insert in such Book, this Amended Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, the use of such content.

Also posted in Section 3.15, Section 3.15(c), Settlement | Comments closed