Most Favored Nation Clause in Google Settlement, privacy in license agreements

[Eric Hellman <eric@hellman.net>]

I had written a post on my blog dissecting the MFN passage, and I 
agree with Robert Richards.

http://go-to-hellman.blogspot.com/2009/04/does-google-really-get-orphan-monopoly.html

After attending the workshop that Richards mentions, I was 
inspired to look more closely at the security and privacy 
provisions of the settlement agreement. I recently posted to the 
list a question about use of proxy servers to enhance patron 
privacy, and wondered whether that would be allowed under the 
settlement agreement. It's a complicated question.  It also looks 
to me as though the libraries have been given a seat at the table 
when security (and thus privacy) standards for GBS are revised., 
which may be sooner than you might think.

http://go-to-hellman.blogspot.com/2009/08/what-google-books-settlement-agreement.html

I would also be interested to hear from list participants how 
real- world licenses compare to the liblicense model license 
provisions for privacy of usage data.

Eric Hellman
President, Gluejar, Inc.
41 Watchung Plaza, #132
Montclair, NJ 07042
USA
eric@hellman.net
http://go-to-hellman.blogspot.com/


On Aug 6, 2009, at 10:03 PM, richards1000@comcast.net wrote:

> My understanding of the panelists' reasoning respecting the MFN
> is that in the absence of orphan works legislation, under the
> property law principle of "nemo dat" the BRR would lack the power
> to license any rights in orphan works to anyone.  The MFN would
> only become applicable if Congress granted the BRR that power.
> As things stand, then, if the proposed settlement agreement is
> approved as is, as long as Congress does not pass orphan works
> legislation, then the MFN clause will not apply to any license
> the BRR might grant to any competitor of Google in the ebook
> market, because any such license will not include rights to
> orphan works.  This suggests that the settlement in its present
> form would enable price competition respecting digital versions
> of copyrighted non-orphan works, as some of us had previously
> argued, by means of the BRR's discretion to license rights in
> such works to new market entrants.