It looks as though Google has decided that it is going to get the Google Books Settlement that it wants (and I suspect that a large part of the American public want it too). Google is just going to push it through as close as it can to the original proposition. There were, after all, two ways of interpreting the decisive and late intervention from the DoJ. According to Michael Cairns it gives a blueprint for how the original Settlement could be renegotiated to pass muster. According to Pamela Samuelson, Google Book Settlement 1.0 is History, it would be astonishing if the Settlement in its current form were to be approved: a new balance and a new settlement is needed which takes account of the deep issues identified in the DoJ brief.
Normally, I would back Professor Samuelson, one of America's most distinguished IT lawyers, against a self-confessed 'know-it-all' mere publishing consultant. But on this occasion I suspect that Cairns has called it right (he may know more about how publishers go about arm wrestling with regulators). The Settlement will be nudged to accommodate the 'objections' raised by the DoJ but it will be broadly as agreed. Here are three tell-tale signs:
- The timescale for resolution is short. The revised Settlement will be presented to the Judge in on November 9 and he has said that he wants matters to be concluded speedily (within a few months). So Google cannot be planning major changes. No extensive process of consultation and commentary is in view.
- There was the rather extraordinary New York Times opinion column, A Library to Last Forever, in which Sergey Brin explained the great advantages of the Googe Book Search project, exactly as though it were to be executed as envisaged in the Settlement. He breezily acknowledges that there have been concerns about 'competition' and 'copyright' but effectively dismisses these concerns as misunderstandings (I bet the DoJ lawyers were surprised to see their analysis so airily brushed aside).
- Google has this week announced its Google Editions project, which is intended to make its books database resource, title by title, available to all readers everywhere in every format of ebook reader. So Google at one step is embracing and enlisting all the ebook platforms which might otherwise be a form of competitive counterbalance to the Google Books Library. I wonder what the DoJ competition experts think of the decisive way in which Google has also pre-announced, long before it is operative, how the discount system is going to work between Google, the publishers and the various retailers envisaged as operating Google Editions? And with Google selling direct as well? And with Google running the search engine for all parties? Is there no potential for anti-trust concerns in all of this?
My guess is that Google is pretty confident that the DoJ really do not want to veto the deal (do you want to stop a deal that enables ten million titles to reach the 30 million Americans who are 'print-impaired'?). The judge probably will not want to veto the deal. Not when push comes to shove. So Google had better hang in for the deal to be the way it wants. After all, Google has digitised the 10 million titles. Google has, we presume, clear vision of the way this is going to work. When the deal is agreed, Google not the Federal Government has to deliver the service. Note who is doing the heavy lifting. Note who is paying the lawyers.
Google has a great database system (oxymoron alert), Google has the ability to deliver a fabulous service, Google has been at the forefront and it has sustained its initiative, and if turns out that it has a de facto, and to a degree, a de jure monopoly, once the dust settles that will be challenged. A monopoly of books will be defeated (ultimately by competition as much as by the courts). Google's confidence is justified and is the other face of its boldness in setting the whole scheme going, and if it misapplies its momentum (which it probably will), it will come unstuck.
There is plenty of scope for Google critics: Angela Merkel, Pamela Samuelson, Peter Brantley and Bob Darnton. And we need them. But Google is getting done something which will bear a lot of fruit. So this settlement is going to go through and stopping Google Books Search dead in its tracks is not going to happen. Sure it will be appealed..... all the way (paid for by those of Google's competitors that want to slow the juggernaut down). But more to the point the Google Books Search settlement is not the last innovative step in this march. Time to move forward. Time to compete with Google through innovation, not through writs.