Quoting Jonathan Rochkind <rochkind_at_JHU.EDU>:
>
> 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.
Honestly, Jonathan, you really should have information before you make
statements like this. For years the contracts of the public
institutions were available right on the Google Books partners page.
They've been discussed in a fair amount of detail (I did a number of
blog posts about them). I don't know what you were implying -- that
I've done something sneaky or illegal? I do not appreciate your
snottiness, especially when you obviously haven't been following this
issue closely enough to know something that was so public.
Here's one of my blog posts, from 2006:
http://kcoyle.blogspot.com/2006/08/dotted-line.html
I'm sorry to berate you like that, but to attack and insinuate is
really poor behavior. We CAN discuss this in a professional manner,
and it IS important to understand this issue because it has a great
effect on libraries.
Interestingly, now that the focus has been on the settlement, many of
the institutions have removed the public versions of their original
contracts. I have hard copies, but will see if I can dig through the
Archive to find the remainder -- and will create a single file on the
Archive (archive.org) for them. (ALA had a site with them all, as did
others.)
As for the rest of this post, contracts and rights are orthogonal. You
may have rights under the law, but if you sign a contract to the
contrary, you are still bound by the contract.
> 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!).
For all of the books that were digitized by Google, the libraries
storing their copies in HathiTrust are still bound by those contracts.
My assumption is that the original contracts are still valid,
including any restrictions on use. That is a good thing because those
contracts were much less restrictive than the settlement would have
been.
>
> 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.
No the settlement (PLEASE READ THE RELEVANT PARTS OR AT LEAST THE MANY
BLOG POSTS) would have greatly restricted what the libraries could do
with the digital copies. This undoubtedly came from the AAP/AG side of
the settlement (and we would know more if the librarians who were
privy to the settlement could talk about it, but they are under NDA;
they pretty uniformly say, though, that it would have been worse if
they hadn't been there).
kc
>
> 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
>
--
Karen Coyle
kcoyle@kcoyle.net http://kcoyle.net
ph: 1-510-540-7596
m: 1-510-435-8234
skype: kcoylenet
Received on Wed Apr 27 2011 - 12:18:23 EDT