GBS: What if the Judge rejected the Settlement?

Here is an interesting comment on the Google Books Settlement that came up in an email exchange a couple of days ago:

I don't think anyone (other than the plaintiff's lawyers) feels good about the settlement as written. As Pamela Samuelson noted, "the settlement, if approved, will shape the future of reading, research, writing, and publication practices for decades to come." I don't think anyone knows what this future will look like, which is troubling.

I have not, however, heard with certainty that the court has the ability to modify the settlement. So the best we could hope for is that the settlement is rejected and the parties in the suit then reopen the discussion, but this time with the open and active participation of public interest groups, librarians, and a broader range of authors and publishers (in order to better represent the diverse interests of the class). I think that there is a snowball's chance in hell of that happening. If it did, it would take years.

So the bottom line, if the settlement is approved, the public in the US will have access to millions of volumes that are otherwise inaccessible to them. They will get it online via book search, and they will get it through the free license to public libraries (something that there was no reason for Google to include, except out of public interest). As long as we have a copyright system that treats every out-of-print scholarly work as if it is the latest Hollywoood blockbuster, I don't see any other way we could get access to this content.

...... it may not be perfect, but that doesn't [necessarily] mean that it isn't good.

This came from Peter Hirtle, a lawyer and a librarian who blogs at LibraryLaw. I find this pretty convincing but also depressing. Peter Hirtle presumably shares some of the reservations of Pam Samuelson, perhaps also of Bob Darnton, but he thinks that the Google Books Settlement will give us a lot that we would not otherwise get. Realism beats idealism.

It could be that the Google Books Library would be a lot better if it was more open and now is the time at which the demands for open-ness should be made. Whether or not the judge has flexibility in making his ruling, it would seem clear that the court of public opinion will have an effect on the way in which Google and the Books Rights Registry operate, post settlement.

Is it even possible that the best solution for Google might even be to have the Settlement rejected, or thrown back for negotiated amendment? If the Settlement and its anticipated services rolls out just as it has been formulated, specified and agreed by the parties, Google will be required to become an enforcer and an exploiter of the intellectual property in the orphan copyrights. Google will be in a very prominent and exposed position, comparable to Elsevier (which has become a kind of whipping boy for libraries and universities), or even worse, it will become subject to monopolies investigations.

I am sure that Google would deny that rejection would be an outcome that they desire. Hey they reached agreement with the plaintiffs and have a lot invested in making the settlement work! But they did agree to a postponement and if the Settlement is rejected, there is only one company that can really make a more open solution work. Google. Google would then probably propose to simply run a search service with most content well sheltered behind a meagre snippeting results service which will not have significant liabilities for Google. They would retreat to their original 'card index', simple search solution. Access will be restricted unless the plaintiffs can propose and agree to a solution which will meet the judge's tests. The Publishers and the Guild will be in a much more awkward position. Chess players have a term for it: zugzwang. None of the legally permitted moves is attractive and its the Authors and the Publishers turn to move. Are the Authors going to pay for the Books Rights Registry? Are they going to really want to sue Google till the pips squeak? Are the publishers going to insist that searching and promoting the discoverability of orphan books is not a good thing?

No. Google has shown that it is willing to do some work, to solve problems and move things forward. The publishers and the authors have no consistent leadership and will dance attendance to the tune that Google composes. The judge has a strong hand to play here and it will be in all our interests (Google's, authors, and publishers included) if he puts some public interest algorithms into the equation of settlement.