There have been some very smart comments on (and around) my previous post on the Google Book Search settlement. If you’re interested, you might want to see the comments section of that post, plus two good posts by Eric Kansa, one before and one after the recent GBS conference at Berkeley.
Most of my thoughts on the points Eric and others raise appear in the comments section of my last post (linked above). But I think maybe the gut-level difference is related to this passage from Eric’s second post:
The Google Books corpus is unique and not likely to be replicated (especially because of the risk of future lawsuits around orphan-works). This gives Google exclusive control over an unrivaled information source that no competitor can ever approximate.
If Eric’s right about this, then it’s critical to get as much public access as possible built into the settlement now, because we won’t have another shot at it. For reasons laid out in my previous post, though, I’m less pessimistic about the prospects for future competition. I think the settlement will make it easier for others to enter this space by providing both a template for negotiations with the authors and publishers and a strong antitrust incentive for the rightsholders to grant equal access.
Scanning is a big-ish project, no doubt, but not prohibitively so (witness the Open Content Alliance, as well as Microsoft’s former efforts, stopped more by fear of legal action than by lack of funds). This is especially true if it turns out there’s significant money to be made by doing it (and the objection, after all, is that the scanned corpus is an immensely valuable resource on which Google will be sitting). Plus, scanning will only get cheaper with time.
My own ideal case would be a combination of meaningful copyright reform (to clarify that scanning for indexical use doesn’t require permission from a rightsholder) and something like Dan Cohen’s proposal for a government (or Ivy League) -funded book-scanning “moon shot” to benefit society at large. Barring this (extremely unlikely, I think) outcome, by all means, let there be as many public-friendly provisions tacked onto the GBS settlement as possible. My point, though, is that even as it stands now, the settlement provides enough benefits to enough people that I’d rather have it go forward than not, and I’m optimistic that many of its shortcomings can and will be addressed (by competition, by legislation, by technological advances) in the short to medium term.
The alternative, just to be clear, is really bad: maybe no book search at all, from anyone (thanks to the unresolved legal questions), and certainly no search of anything outside the (fossilized) public domain. No research corpus. No free public terminals with millions of in-copyright books at libraries. And this situation would endure indefinitely, backed up by the very real example of a messy, expensive, status-quo-reinforcing failure.