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.
Work Product 
“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.”
Here’s where we absolutely agree. My colleague Jason Schultz discussed this at the conference. The jist of his comments amounted to saying that the court can reject this settlement and say fix issue X, Y, and Z, and the parties are pretty likely to come back with a fix for these issues. In other words, we can hope to have the issues of concern addressed in a meaningful way without scuttling the whole thing.
So, let’s hope for the best on this, since it truly is a big deal.
Matthew, it sounds like you believe that the options here are 1) the settlement is approved as-is, and we have to wait upon [competition | legislation | technology] to address its shortcomings, or 2) the settlement is rejected and we live forever without the benefits of digitized books. But as Jason Schultz pointed out repeatedly at the Berkeley conference, that is a false choice. Class-action law suits can and very often do get rejected by a judge, with the recommendation that the parties make some fixes to the proposed settlement. The parties then come back–usually quite quickly–with a new proposal. It’s simply not the case that we have to take the settlement or leave it. Of course Google implies that this *is* is the case when they discuss the settlement publicly, because they don’t want to spend any more money on lawyers than they have to. But they’re not just going to take their ball and go home if the settlement is rejected. On the other hand, if the settlement is accepted, we could wait a long time for the [competition | legislation | technology] to descend from the sky and fix our problems. Which is why I believe it is important to examine the settlement very critically, and to be vocal about the very real problems it has. I’d rather have an improved settlement in 2010 or 2011 than still be living with the effects of a flawed settlement in 2020.
Ryan and Eric, thank you both for very thoughtful replies. You’re right, of course, that the settlement can (and almost certainly will) be emended before it’s approved (if it is in fact approved). And you’re likewise right that it could be better for us, so I hope that it’ll be changed in ways that will benefit us as academics and readers.
I guess there are two different questions that I’ve been kind of running together. One is “In what specific ways could the settlement be better for us?” The other is “What *must* change in the settlement before I could support it (i.e., before it would be better than nothing)?”
It was the second question that originally prompted me to write, because the impression I get from many fellow academics with whom I discuss the settlement is that there’s a lot that *needs* to change, and that we’d be better off with nothing than with the deeply flawed alternative, if that were indeed the choice. I don’t agree, as I suppose is clear from what I’ve written before, and I’m not sure where a lot of the settlements’ opponents truly stand on this. If you’re negotiating the thing, I can see why it’s strategically important to project a certain … force … to your position. But if push came to shove, would most academics say yes or no? I don’t know. For myself, it’s not a close call. But as you both say, it’s not likely that this will be exactly the call anyone is asked to make.
The first question, though, about what we’d *like* to see changed is the more interesting one, and events like the Berkeley conference are a great way to think through the issues involved. Where I disagree slightly with the settlement’s more vocal critics is in the extent to which any of the proposed modifications (or lack thereof) are dealbreakers. Again, I understand that this is in part a tactic and in part a genuine difference of opinion concerning the benefits and costs of the current (and currently proposed) arrangements.
Two other quick things, a question and comment:
1.) Was there any consensus coming out of the Berkeley meeting about what specific changes to the settlement were of highest priority and/or most likely to be accepted by the parties or the judge?
2.) I’ll admit that I’m a little baffled by the apparent animosity toward Google in all this (not from you specifically, but in general). If there’s a bad guy, as far as I’m concerned, it’s the rightsholders, who (as always) are pushing a draconian version of the limits of fair use. The settlement wouldn’t have been necessary in the first place if they hadn’t asserted that they have the right to control indexing of their work. Is it just that everyone already expects the content people to be evil and has given up muttering against them?
I’ll try to answer your question and address your comment.
1.) Not really. There were a lot of different issues being covered, and not a lot of time. If anything, think most people left thinking that the settlement was more complex and difficult to judge than when they came in.
2.) If there is any specific animosity towards Google, I think it may be because a lot of people had raised Google on a pedestal, expecting them to fight the good fight for fair use on everyone’s behalf no matter what the cost. The realization that Google was just another corporation may have disappointed them, and now they are petulant. In addition, I think some people perceive Google as a threat to libraries in a way that aggressive copyright holders are not.