Wednesday, December 31, 2008

How to Opt-Out of the Lawsuit/Settlement

1. Instructions for Opting Out of the settlement and Opting Out of any Google database
2. Definitions that may be helpful
3. Opt Out Letter Format
4. Why Opt Out?
5. What is Opt Out?
Important: Lo Web location to read documents pertaining to the law suit againts Google, Inc. and the proposed settlement agreement:
1. Title your document: Notice of Opt Out
2. All documents to be filed with the court must be mailed to the addresses below:

Office of the Clerk
J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007

Google Book Search Settlement Administrator
C/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364

3. All documents filed with the court must include the name and number of the lawsuit, The Author's Guild, et al., vs. Google, Inc., case number 1:2005cv08136.
4. Be sure to make a copy of your letter and I suggest you get a confirmation of delivery.
5. If you don’t like the Opt Out Notice format/style I have provided you can copy the style from the header and footer in court documents which can be seen at

If you have any questions about the lawsuit, you may:

Contact the Authors Guild at,/
Contact the Association of American Publishers at
Contact class counsel
Here is contact info for the attorneys representing the authors (and ostensibly the illustrators) class:
Michael J. Boni - Phone: 610 822 0201
Joanne Zack - Phone: 610 822 0202
Joshua D. Snyder - Phone: 610 822 0203


It is not clear from the text of the proposed settlement document who exactly is in the class. Some definitions which might be helpful:

1.14 "Author Sub-Class" means members of the settlement class who are authors, and their heirs, successors and assigns, and any other members of the Settlement Class who are not members of the Publisher Sub-Class.

[This is a general inclusion of all rights holders].

1.16 "Book" means a written or printed work....registered with the United States Copyright Office....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

[definition then lists things it does not include, and does not mention art or graphics -- so either a collection of art/illustrations or a graphic novel can be considered a "Book" even though the artwork in the Sandman series would not be considered "children's book illustrations." Ditto for Maus. There is not a clear dividing line between children's literature and books for adults, so it becomes a complex issue]

1.44 "Digital Copy" of a Book or Insert means a set (or portion thereof) of electronic files created by or for Google or provided to Google in connection with [Google Book Search] including the image files of the individual pages of the Book or Insert along with text (currently generated from OCR technology)...
[access to scanned copies of actual pages will include any graphics and artwork on those pages, how do you excise the illustration from the actual copied page?]

1.72 "Insert" means the following content, if and to the extent such content is independently Protected by the Copyright Act...(ii) children's Book Illustrations;...and (iv) tables, charts and graphs. The term "Insert" does not include (1) pictorial works, such as photographs, illustrations (other than children's Book illustrations), maps or paintings....

[Paintings and graphics are not the same thing. Not only can images be produced electronically, and not painted at all, but graphics such as graphs, tables and charts can be subject to copyright]
Opt Out Letter Format:

Notice of Opt Out
The Author's Guild, et al., vs. Google, Inc., case number 1:2005cv08136

I, Your name, (publisher or author) have decided to opt-out of the proposed settlement.
business name
phone number
email address

I hereby request that Google not include copies of any of my work, in whole or in part, including but not limited to the following in any of its databases. (list work with ISBNs)

Title, ISBN
Title, ISBN

I have sent a copy of this document to counsel for the parties by mailing by first class mail to the names and addresses listed below on the (date) of (month) (year).

Counsel for the Author Sub-Class:
Michael J. Boni, Esq.
Joanne Zack, Esq.
Joshua Snyder, Esq.
Boni & Zac LLC
15 St. Asaphs Road
Bala Cynwyd, PA 19004

Counsel for the Publisher Sub-Class:
Jeffrey P. Cunard, Esq.
Bruce P. Keller, Esq.
James J. Pastore, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022

Counsel for Google:
Daralyn J. Durie, Esq.
David J. Silbert, Esq.
Joseph C. Gratz, Esq.
Keker & Van Nest LLP
710 Sansome Street
San Francisco, CA 94111
Why Opt Out?
This letter is to alert you to the dangers - to the laws of copyright, and to the powers of Congress - in the recent class action settlement agreement between Google, some major publishers, and the Authors Guild. This agreement violates, in an egregious and direct way, Clause 8, Section 8, Article I of the Constitution, granting legislative power only to Congress, the elected representatives of the people.
Google proposes to scan every book in every public library in the United States, and, by putting this material online, to allow readers to purchase and download all or part of the work; or to combine sections of several works into a new volume, also for sale. Copyright owners who do not wish to permit these uses, can withdraw their work only by opting out of this settlement. If an opt out declaration is not made, these owners lose control of their property - forever - transferring that control to Google. This is a direct violation of Copyright Law.
As you know, these regulations grant to creators, for a period of years, sole ownership of their work from the time of creation. Use of this material by others first requires permission to be obtained. Google now insists that this specific regulation does not apply since its actions are covered by regulations governing Fair Use. These, they claim, allows such actions "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. . ."None of which apply here.
To the contrary: Fair Use specifically prohibits reproduction for profit making purposes. Google's plan to insert advertising, and to charge fees for these downloads, violates this particular provision. Also violated: a prohibition against "substantiality" - taking the work as a whole; and where such use would result in monetary loss to the copyright owner. Monetary loss is a certainty here: libraries may no longer purchase paper and print copies, thus affecting publisher profits, as well as author royalties. What's more, these arrangements are imposed, fixed forever, and are substantially less than what authors - and/or their agents - may achieve through individual contract negotiations with book publishers.
Easiest to explain and most relevant, however, is this: the Authors Guild explains its agreement to the Settlement terms because these terms provide "excellent relief when weighed against the risk and delay of further litigation."Difficulty in enforcing law doesn't justify breaking it: in this case, Copyright and Fair Use regulations demand enforcement, even if such enforcement would be met by batteries of lawyers paid from Google's apparently limitless legal war chest.
There are other flaws in this particular class action agreement: The Authors Guild does not represent anyone but its own 8,000 members. It is most reasonable to assume that authors of works in the libraries of the United States number far more than that. Also not party to this agreement are the thousands of small publishing firms in the United States; and, especially, today's self-published authors who may have succeeded in placing their work in a few, or many, public libraries.In other words, authors, and any publishers who are not a party to the Settlement (and may not even be aware of it), are nonetheless included. That inclusion is automatic - violating their copyrights. And the law.
Thus, in spite of Congress, Google is using its deep corporate pockets to change that law all by itself.In effect, Google now asserts its own rights over the prerogatives of the legislature. It is not the peoples' representatives who are making new law, it is Google which is doing this. The long-range implications can not be ignored: if Google can change the laws of the United States, might not other powerful national or international corporations do so too? As I'm certain you recognize, this precedent opens up a still wider danger to the entire mechanism of representative government.
What is Opt Out?
Background: In 2005 a law suit was filed in the U.S. District Court for the Southern District of New York by the Plaintiffs: an author association - The Authors Guild, one publisher association - Association of American Publishers, Inc., and five large publishing houses: The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA), Inc., Simon & Schuster, Inc, and John Wiley & Sons, Inc. against Google Inc. for copyright infringement… a violation of USA copyright law.
The law suit is about a Google, Inc. Library Project where Google scanned copyrighted books obtained from a library without obtaining permission from the copyrights owners which was in violation of USA copyright laws.
From 2005 to October 2008 the 7 Plaintiffs and Google, Inc. negotiated an agreement to settle the lawsuit. The court has not made a ruling yet on the proposed settlement agreement or the law suit.
The Authors Guild is responsibile for all (USA) author and publisher copyright rights holders being added to this law suit as sub classes making the law suit a class action law suit.
All USA authors and publishers were added as sub classes without their knowledge. The proposed settlement agreement was also negotiated without all (USA) authors' and publishers' knowledge. In the proposed settlement agreement Google, Inc. has admitted to copyright infringement. How much and against which copyright rightsholders Google has not made this information available and won't until after the court rules on the law suit and proposed settlement agreement.
All USA authors and publishers who own the copyright to their work/books have two choices to make before May 5, 2009. This is the date designated by the court.
Decision Options:
1. Do nothing and be bound by the proposed settlement agreement which is a 300+ page document full of confusing and contradictory provisions; provisions which have criteria and definitions left unexplained or not defined.
Note-->If you do nothing (don't Opt Out) you are allowed to write formal "Objections" to the proposed settlement agreement, send them to the Court, and you can even attend a "Fairness Hearing" the court will hold prior to a ruling on the class action law suit and proposed settlement agreement.
2. You can choose to Opt Out, meaning you do not want to be bound by this proposed settlement agreement. If you do this you must do so in writing.
Note--> You will need to also Opt Out of Google's Book Partner Program if you choose to Opt Out of this law suit and proposed settlement agreement.

Disclaimer: I Am Not A Lawyer. Seek Legal Advice if You Need Help in Determining What Decision You Will Make.


  1. What if you become a published author after the date set by the court? like years after the date? can you still opt out?

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