<br><div class="gmail_quote"><br><br><h2><a href="http://openeducationnews.org/" target="_blank">http://openeducationnews.org/</a> <br></h2><h2><a href="http://openeducationnews.org/2009/04/14/a2k-and-orphaned-work-the-rise-of-the-open-access-trust-inc/" rel="bookmark" title="Permanent Link to A2K and orphaned work: the rise of the Open Access Trust Inc" target="_blank">A2K and orphaned work: the rise of the Open Access Trust Inc</a></h2>
by Carolina Rossini<br>April 14, 2009 · <a href="http://openeducationnews.org/2009/04/14/a2k-and-orphaned-work-the-rise-of-the-open-access-trust-inc/#respond" title="Comment on A2K and orphaned work: the rise of the Open Access Trust Inc" target="_blank">No Comments <br>
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<div><p>On
April, 13 a group of professors lead by Charles Nesson, Lewis Hyde and
Harry Lewis requested a pre-motion conference to Judge Denny Chin
seeking to file a motion to intervene in the case <i>Authors Guild v. Google.</i></p>
<p>These scholars represent the community of readers, scholars, and
teachers who use orphaned works. Orphaned works are works under
copyright, but with a copyright holder who has died, cannot be found,
or otherwise has abandoned his work. In the status quo, users like us
and commercial users like Google can and do use orphaned works,
although we do so against a backdrop of potential legal liability
should the owner of an orphaned work later emerge.</p>
<p>The petitioners affirm that:</p>
<p><i>“The parties in this case propose to change this status quo by
clarifying that the use of orphaned works is, indeed, actionable
copyright infringement; vesting in Google a monopoly in the lawful use
of orphaned works; and dividing between themselves the proceeds of this
monopoly. The Authors and Publishers, with Google’s consent, purport
to represent a class of copyright holders that includes the owners of
orphaned works, even though neither the Authors<br>
nor the Publishers are such owners. Having turned the Authors and
Publishers into legal representatives of the owners of orphaned works,
Google will buy from these representatives a global license.</i></p>
<p><i>The proposed settlement will make Google the only company in the
world with a license to use orphaned works. No other company will be
able to buy a similar license because, outside the context of the
proposed class-action settlement in this case, there is no one from
whom to buy such a license. The Authors and Publishers join in this
scheme because Google proposes to divide with them, pursuant to the
proposed settlement agreement, the revenue that the orphaned works will
generate. The settling parties plot a cartel in orphaned works.</i></p>
<p><i>We seek intervention to defend our interest in orphaned works —
to defend the public domain’s claim to free, fair use. The purpose of
copyright is to promote authorship and learning. Copyright does this by
giving authors exclusive rights for limited times so that authors can
profit from their writing by selling licenses to others. This
mechanism breaks down in the case of orphaned works because, with
respect to these works, there is no one from whom to buy a license.
The public can buy no license; the author can reap no reward. Because
exclusive rights in orphaned works do not serve the ultimate purpose of
copyright, the public domain has a claim to free, fair use of orphaned
works.</i></p>
<p><i>We have the right to intervene to present the public domain’s
claim to free, fair use of orphaned works. None of the present parties
will present our claim. It is inconsistent with the settlement they
propose. If the use of orphaned works is free and fair, then there is
no exclusive license to give Google and no claim on the part of Google,
the Authors, and the Publishers to the proceeds of that exclusive
license. We must press our claim in this case because it is only in
this case that there is a party that purports to represent the owners
of orphaned works with whom we, like Google, can negotiate. Our
interest in orphaned works, put in jeopardy by the proposed settlement
and adverse to the interests of the settling parties, gives us the
right to intervene under Rule 24.”</i></p>
<p>More comments on the possible effects of the Google Book agreement:</p>
<p>To read the agreement, access the site <a href="http://www.googlebooksettlement.com/" target="_blank">Google Book Settlement</a></p>
<p>All Peter Suber Open Access Blog entries<a href="http://www.google.com/cse?num=100&cx=014252173690352420777%3Ajhwak-xjt_0&q=Google+Book+settlement&sa=Search&cof=FORID%3A0" target="_blank"> here</a>.</p>
<p>Harry Lewis Blog <a href="http://www.bitsbook.com/2009/04/orphaned-books/" target="_blank">here</a>.</p>
<p><a title="http://www.nybooks.com/articles/22281" rel="nofollow" href="http://www.nybooks.com/articles/22281" target="_blank">Google & the Future of Books</a> By Robert Darnton, February 12, 2009.</p>
<p>Siva Vaidhyanathan has a whole series of relevant posts <a title="http://www.googlizationofeverything.com/is_google_a_library/" rel="nofollow" href="http://www.googlizationofeverything.com/is_google_a_library/" target="_blank">here</a>.</p>
<p>James Grimmelmann has a detailed analysis <a title="http://laboratorium.net/archive/2008/11/08/principles_and_recommendations_for_the_google_book" rel="nofollow" href="http://laboratorium.net/archive/2008/11/08/principles_and_recommendations_for_the_google_book" target="_blank">here</a>.</p>
<p><a href="http://fringethoughts.wordpress.com/2009/04/06/google-and-market-failure-think-wal-mart-not-microsoft/" target="_blank">Aaron Shaw’s Weblog </a></p>
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