The "oddness" was remarked upon in Randy picker's talk at the Columbia
conference on the Google Book Search Settlement. "orphan works" is not
a term that occurs in the settlement agreement. "Rightsholders other
than Registered Rightsholders" are orphan parents.
Careful commentators refer to the "initial monopoly" on orphan works
created by the settlement agreement, becasue we don't know what will
happen down the road.
On May 20, 2009, at 8:14 PM, Karen Coyle wrote:
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
