Eric, can you cite a section for this? Because I haven't seen this
interpretation elsewhere, and I don't read it in the section you cite,
which doesn't seem to me to mention orphan works. I will point to
Grimmelmann:
http://works.bepress.com/cgi/viewcontent.cgi?article=1024&context=james_grimmelmann*
pp 10-11.
Grimmelmann thinks that the monopoly on orphan works is what will give
Google the edge that keeps away competition, but he doesn't interpret
the MFN clause as relating only to orphan works.
kc
*
Eric Hellman wrote:
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
--
-----------------------------------
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
------------------------------------
--
-----------------------------------
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
------------------------------------
