>> It gets tricky. If we assume that no settlement every happens...
>> that doesn't change the contract between the libraries and Google.
>
> It might if it was based on rights being given through the settlement,
> rather than current copyright law. I wondered about the contracts when
The Google contracts might have been written assuming certain rights
would be gained by the settlement, but the Google contract can not
and could not GIVE anyone rights they did not already have under
copyright.
All the contract can do is RESTRICT rights they would have had
ordinarily under contract. And any such restrictions are still
contractually binding.
Scanning, keeping scanned copies, and providing search over
in-copyright works MAY or MAY NOT be fair use. We don't know
for sure, regardless of what the (confidential, no? How'd you get
one, Karen?) Google contracts say.
The contracts (plural, not every Google partner's may be identical)
may have been written assuming that that through settlement
Google would get PERMISSION to do certain things (which doens't
require them to be fair use; if they were fair use, no permission would
be needed), and then pass on that permission to libraries.
Obviously that has not (yet?) happened.
And yes, you're right, the contract restricts what partner institutions
can do even with out-of-copyright materials, and those restirctions
are still contractually binding regardless of any settlement or lack
of settlement.
You can give up through contract what rights you would have had
otherwise through copyright, and once you sign that contract, you've
given em up. And libraries did that.
Still, without a settlement, libraries with Google scans are actually in
a fairly comprehensible environment:
* They can do what they are allowed to by copyright law
* unless they've signed a contract with Google promissing to refrain from some of those things.
* if you're not sure if you're allowed to do something under copyright law,
well, that's life. You can decide how risk-averse or innovation-forward to be
based on your legal counsel.
I remain pleased that HathiTrust appears to be deciding to operate under the belief that scanning, keeping scanend copies, and providing search is protected by fair use. They don't need a Google contract to do that, it's got nothing to do with a Google contract. (Unless they agreed in a google contract NOT to do it!). (At best, IF a settlement had been made, Google could, under contract, have passed on permissions the settlement authorized them to pass on, WITHOUT needing to make a fair use claim, having actual permission from copyright holder representatives authorized by the court. But, yeah, that didn't happen).
I don't think me and Karen are disagreeing? But we're good at seeming like we are even when we're not.
Jonathan
Received on Tue Apr 26 2011 - 19:44:59 EDT