I think one thing in Karen's comment is incorrect. As far as I can
tell, the 'most favored nation' clause does NOT apply in the situation
that Karen assumes it "would be most likely to come into play". MFN
appears to apply only if the registry licenses orphan works. It's an
odd provision if you assume that the registry can't license orphan
works; commentators such as Randy Picker have also commented on this
oddness; as Karen mentions, it could be meant to come into play if
orphan works legislation is enacted. You can examine the legalese
yourself at
http://go-to-hellman.blogspot.com/2009/04/does-google-really-get-orphan-monopoly.html
Eric
On May 20, 2009, at 2:54 PM, Karen Coyle wrote:
Eric Hellman wrote:
Should note that Google could be paying $100,000,000+ to rights
holders without getting ANYTHING in return in the absence of a
settlement- that's what the copyright attorneys I've talked to
believe would have been the ruling by the court had the suit gone
to trial. And if that happened libraries would get nothing, not
even the scans. I don't see how bashing Google (which is NOT what
the library association briefs are doing, btw) for gaps in US and
international Copyright Law(orphan works, for example) will end up
helping libraries.
My blog at http://go-to-hellman.blogspot.com/ is no longer secret.
Eric
Another important note is that the settlement is the collective
desires of the entities representing rights holders (Author's Guild
and Assn Am. Publishers) and Google. Because the settlement talks
were done under NDA, we can only guess at which aspects of the
settlement were proposed/championed by which participants. From the
little bit that has been revealed by folks who were there (because
they are still under NDA) the AAP had strong demands and was
probably equal to Google, if not more so, in terms of its ability to
carve out what it felt was the best deal. The settlement is a
compromise, with everyone getting *some* of what they wanted, and no
one getting *all*.
In answer to the question you pose on your blog: "The key question
is this: Would the Book Rights Registry have the ability to
authorize a Google competitor to copy and use "Orphan works"?" The
legal folks I've heard speak about this say that the answer is "no."
Only the court can authorize the copying and use of Orphan works
outside of what copyright law already states, and this settlement
waives liability under the law only for Google. The registry cannot
change the legal status of Orphan works under the copyright law in a
way that would permit copying of them as in-copyright works. The
registry sets prices, so if someone else found a way to copy Orphan
works legally (say, if we got orphan works legislation), the
registry might be used by them as the middle-man for payments.
Most likely the registry would be used for non-Orphan works, because
the rights holder could make a deal with the registry to give
permission for copying, with $$ going to the registry and on to the
rights holder. This is exactly what the Copyright Clearance Center
does -- it serves as a central licensing agency for copyright
holders. I assume that this is the area where the 'most favored
nation' clause would be most likely to come into play -- basically,
if Google Books is successful, rights holders might want to make
deals with other entities for similar product lines.
Whether or not the suit itself would have gone against Google is a
matter of debate. I've heard it both ways. Google folks state (and
because they say this publicly it has to be considered at least
partially a PR statement) that the lawsuit would have gone on for
years (true), and they didn't want to wait that long to be able to
know what they could and could not do with this project. That makes
sense, but it also is possible that they weren't as sure that they'd
win as they'd stated when they started the project.
kc
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Karen Coyle / Digital Library Consultant
[email protected] http://www.kcoyle.net
ph.: 510-540-7596 skype: kcoylenet
fx.: 510-848-3913
mo.: 510-435-8234
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