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
> [log in to unmask] http://www.kcoyle.net
> ph.: 510-540-7596   skype: kcoylenet
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> mo.: 510-435-8234
> ------------------------------------