Thanks for this summary and review Ed, very useful for those of us who have trouble finding time to listen to podcasts. A couple points not covered in Ed’s review…
I’d repeat that, while I’m not a lawyer either, my understanding of US copyright law is that OCLC wouldn’t have much of a case for copyrighting the ‘compilation’ either, as per the post Feist v. Rural state of the law. The amount of effort put into assembling a compilation is almost entirely irrelevant to the law of copyright post Feist v. Rural.
The most important negative part of the policy, which it doesn’t sound like they discussed much in the interview (?) is that any use is prohibited which “substantially replicates the function, purpose, and/or size of WorldCat.” That means that clearly OCLC would deny permission for uses they believe to be such, but also that OCLC is asserting that with or without such an agreement, such use is prohibited, by libraries or by anyone else.
It seems clear to me that Open Library participation would be prohibited on these grounds alone, as it clearly aspires to approach the ’size’ of WorldCat.
OCLC wants you to be able to use the records, as long as you aren’t using them for anything that is like WorldCat. They want to, as much as they have control over, discourage anything else like WorldCat from existing. Me, I want to encourage as many entities as possible to experiment with things that are “like” WorldCat in size, function, and even purpose. I think it serves OCLC members’s interests to do so. We need more experimentation, more attempts, from different and even contradictory directions, to see what we can do with corpuses of our collective cataloging, and with infrastructure for cooperative cataloging.
OCLC thinks that allowing this is incompatible with allowing OCLC to survive. I don’t think this is true, but even if it WERE true, I don’t think the choice of which thing to sacrifice would neccesarily be answered favorably to OCLC.
Of course, OCLC wants to prohibit this to the extent they can. It remains unclear to what extent they legally can. But part of the point of this policy is to expand OCLC’s _legal_ ability to control these uses by establishing contractual restrictions with OCLC members and third parties that did not exist before. Which is why, if I were a third party like Open Library, I’d be reluctant to enter into such an agreement with OCLC even if they were to offer me one. It will be interesting to see if any entities, members or third-parties, start to try doing things that push at the limits of, or even violate, that policy, under the argument that that policy is not legally binding upon them.
For comparison, note that the Google book settlement, which I’ll try to post some more comments on soon, explicitly states that nothing in the settlement limits any rights under fair use by either Google or participating libraries, instead applying only to uses that are protected by copyright. The OCLC policy does not include such a statement, and really can’t include such a statement, because the main attempted power of the policy is to control uses that are most likely not protected by copyright.