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
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