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
>>>