Re: orphans, doing something (was what are orphan works?)

On 10/1/09, Mary E Tyler <[email protected]> wrote:

> You know, all this about "Google control" just rings of FUD to me. I
>  can see naught in the settlement that says that Google is the ONLY
>  company that can ever make this sort of deal.

It's not a "deal." Two sides didn't come together in a corporate
meeting room and hammer out their differences to reach a mutually
profitable arrangement.

It's a settlement agreement. It's a case of "some people sued Google
for breaking the law, and Google agreed they screwed up, and instead
of going to court and getting a ruling and maybe paying the full legal
penalties, Google offered this instead." In this case, the "some
people" have been expanded by legal magic to include "all registered
copyright owners of books & inserts published in the US before 2009."
(Set aside how many of those people's interests were actually
addressed--that's the class of people supposedly involved, so that's
the class who are affected by the ruling.)

Any *other* company that wanted the same arrangement would need to
have the same circumstances: break the law by scanning & distributing
sections of books, getting sued in a class-action lawsuit that named
the same class of affect people, and THEN they can try to offer the
same terms in lieu of a trial and potential ruling and penalty of up
to $150,000 per book scanned w/o permission.

Nobody can say, "we want to open an archive; let's make a deal with
all rightsholders who published before 2009." They can't say, "we want
an archive of out-of-print books; let's make an arrangement with the
US gov't to not let anyone sue us for including them, as long as we
remove them by request."

The terms of the agreement are *not available* to anyone else.

All another company could do, is start scanning, and pray they can
arrange the same class of people to sue them, and pray they can get
the representatives of that class to accept the same terms instead of
prosecuting.

> Nor does it say anywhere
>  that the deal cannot be pre-empted by legislation

Legislation gets odd when it deals with terms of lawsuits. They become
a weird kind of private contract.

A law that says "college students must reveal their medical records to
the school," doesn't override a gag order from a settlment in the
kid's preteen years.

> (though at least one
>  congress person has said something to the effect that this is a topic
>  that SHOULD be dealt with in legislation,

Absolutely. As much as I like what Google's trying to do here (I love
the idea of an archive of out-of-print books for research purposes),
they've arranged it in a way that gives them a monopoly. It's possible
there's no way for them to arrange it otherwise--they can't make a
settlement that allows other companies to break the same laws they
broke and get the same terms in exchange.

> This deal could well become the blueprint for other
>  deals. Or, it could die on the vine ensuring that congress will do
>  nothing,

Right now, they're back to Square One: The authors' guild has accused
Google of deliberate violation of copyright, with a potential penalty
of up to $150,000 per book scanned. Google has a *strong* motivation
to find a workable settlement.

And EVERYONE wants something useful out of this. Everyone likes the
idea of online archives of obscure or otherwise unavailable materials.
(Some people prefer that all that material is opt-in, rather than
opt-out--but everyone hopes lots of people opt in.)

This situation may be the bump Congress needs to realize that
copyright law is seriously broken; it's inhibiting obviously useful
activities that can allow science, art, and profit for *many* people.


-- 
"I follow Eris blindly in all things. That She is the Goddess of Chaos
simplifies this immensely."  -- Christian the Pagan


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