February 23, 2010 | By Fred von Lohmann

Google Book Search Settlement: Updating the Numbers, Part 2

In our last post, we set out some of Google's numbers for the total number of books that would fall under the amended settlement agreement. Now let’s look at how many and what sorts of rightsholders have come forward as a result of the oft-criticized notice program conducted by Google and the plaintiffs. For starters:

Number of Books Google Says are Subject to the Settlement: About 10 million

According to Rust Consulting, the company administering the notice program, 44,450 claim forms (both online and hardcopy) have been received as of February 8, plus 485 "lists" (a kind of modified claim request). The claims relate to approximately 1.13 million books and 21,829 "inserts" (i.e., things like a short story or article in an anthology). Of the 1,107,620 books claimed online, 619,531 are classified by Google as out-of-print and 488,089 are classified as in-print.

Total number of claimants: 44,450

Total books claimed: 1,125,339

Total inserts claimed: 21,829

Percentage of books claimed (online only) that Google classifies as out of print: 56%

So, of the 10 million books potentially covered by the amended settlement on Google's numbers, rightsholders have spoken up for a little more than 10%. Because there may be disagreements between the author and the publisher about who owns the rights, it is possible that some of these claims are actually competing claims for the same book.

Percentage of books claimed on Google's numbers: about 10%

As of the January 28 deadline for opting out, Rust reports receiving 6,818 requests for "exclusion" (which Rust uses here to mean simply "opting out of the settlement"). Adding that number to the 44,450 claiming responses makes a total of a little over 50,000 rightsholder responses, with about 87% choosing to participate in some form in the settlement and 13% opting out altogether. Keep in mind that those who objected to the settlement—and there were over 500 objections filed—had to stay in the settlement in order to object, so the 87% number shouldn’t be read as consisting only of those who favor the settlement.

Percentage of responding rightsholders who have opted out: 13%

Percentage of responding rightsholders who have chosen to participate in some form: 87%

The “Exhibit D” document of Rust Consulting's submission, consisting of four tables, was initially unhelpful and unenlightening, because none of the columns seemed to be properly labeled. However, upon EFF's request, Google promptly had Rust provide a clearer document, which has the missing information (Google says that the prior problem was due to scanning and that the document has not changed). Google confirmed one error in the first table: the correct number of online publisher claims should be 4,312 and 880 for agent claims.

The publisher claims account for 787,942 out of the 1,107,620 books claimed, or 71%, with an average of 895 books per claiming account. It is interesting that a relatively small number of publishers accounted for the bulk of the claimed works.

Percentage of books claimed by publishers: 71%

Percentage of books claimed by authors: 29%

At the fairness hearing, the lawyer for the Science Fiction Writers group raised concerns that publishers are claiming works that are out-of-print, which is problematic since in many instances those rights should have reverted to the authors. The attorney noted that the Google Books settlement appeared to be creating an opportunity for publishers to try to claim ongoing rights, and corresponding income, from works that they had abandoned and to which they may not have current contractual rights. This is one of many criticisms raised by author groups as well as the Department of Justice at the fairness hearing -- that the settlement rides roughshod over the contractual relationships between authors and publishers.

These numbers help clarify the picture, at least a bit. We hope Google, the plaintiffs, and Rust Consulting will provide even more numbers moving forward so that the public can continue to assess the settlement even as the Court deliberates.

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