Sunday, April 19, 2009

Does Google *really* get an Orphan Monopoly?

After posting on the Bits blog that "monopoly" is too strong a word to describe the rights to orphan works that Google would acquire if the proposed Google Book Search Settlement agreement is approved, I started to worry that my interpretation of the settlement agreement was incorrect. The key question is this: Would the Book Rights Registry have the ability to authorize a Google competitor to copy and use "Orphan works"?

On further study, and after incanting "I Am Not A Lawyer" ten times fast, I've come to the conclusion that definitely, maybe it can. The relevant section of the settlement agreement is 3.8 (a), also known in the commentary as the "Most Favored Nation" section.


Effect of Other Agreements. The Registry (and any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) will extend economic and other terms to Google that, when taken as a whole, do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the Registry (or any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) when such authorizations (i) are made within ten (10) years of the Effective Date and (ii) include rights granted from a significant portion of Rightsholders other than Registered Rightsholders. With respect to any such authorization, the Registry promptly will provide Google with notice that an authorization has been granted with sufficient detail of the terms to allow Google to obtain the benefits of such authorization pursuant to this Section 3.8(a) (Effect of Other Agreements).



That's a lot of clauses and legalese. Here are my notes. IANAL!

  1. The settlement agreement clearly anticipates that the Registry would enter into other agreements with regard to orphan works. The phrase "rights granted from a significant portion of Rightsholders other than Registered Rightsholders" can be translated into the vernacular as "rights to orphan works".

  2. "Most Favored Nation" applies only to orphan works, and expires after 10 years.

  3. "(and any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement)" just says that the Registry can't use a puppet to evade the MFN.

  4. I gather that lawyers are not universally agreed that it would be legal for the Registry to release copyright infringement claims by "Rightsholders other than Registered Rightsholders". IANAL. Certainly the Registry could act on behalf of Registered Rightsholders. But supposing a law firm filed a class action suit to enjoin the Open Content Alliance from doing digitization of orphan works. How could the court block a settlement agreement of this new lawsuit after approving a settlement for Google?


Bottom line- I think I was right to say that "monopoly" is too strong a word. "murkopoly" maybe.

Below the Bottom line- Mike Shatzkin's posts (with help from Michael Cairns) and the commentary on the Shatzkin Files are very much worth reading, if you, like me, are trying to understand the implications of the Google Book Search Settlement.

1 comment:

  1. I'm pleased to see that Randy Picker's paper is consistent with my analysis. In his section IV.B., he lays out some possibilities for clarifying the anbiguities of the MFN section and makes some suggestions of how to mitigate some of the concerns that have been expressed about the "initial monopoly" to use Orphan Works that the agreement gives to Google.

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