I suspect that we're going to be hearing a lot more about the Google Books settlement over the next several months. There will be several hearings about the fairness of the settlement terms in the Fall; the Supreme Court will be hearing the case of Reed Elsevier v. Muchnick, which raises many of the thorny jurisdictional issues that are embedded in the G.B. settlement; and a number of challenges to the settlement are already being prepared and will likely be filed over the next few months (see below).
It's a very complex set of issues, and I don't have a simple or straightforward position on it myself. To begin with, it is, technically, very complicated; to my eye, the best summaries/discussions of the details come from Fred von Lohmann over at the Electronic Frontier Foundation, and James Grimmelmann at NY Law School; well worth a visit if you're interested in learning more about what's going on.
Personally, I don't have a huge amount of sympathy for those who complain about the "unfairness" to copyright holders in Google's plans [see Robert Kunstadt's rather intemperate remarks in the National Law Journal here].
"Google took from the authors first—and belatedly now seeks to legitimize its misconduct by this settlement. Instead, Google should be punished hard, to deter such schemes. Otherwise, Google will succeed where Napster failed. Respect for IP law—as well as the rule of law in general—will decline. If an enterprising homeless person pitches a tent in Google's corporate parking lot for a 'Thomas Jefferson Used Book & CD Flea Market,' will Google let it stay there (since it only occupies part of the lot)? How about for a profit percentage as sweetener to induce "settlement"?
Google's conduct fits the definition of a public nuisance, and may be enjoined as such. It imposes a small harm on a large number of authors. The harm, copying only a portion of each work, is calculated so as not to make it worthwhile for an author to incur the expense of suing for injunctive relief. Google, despite its cute slogan "Don't be evil," is like a large paper mill releasing noxious gas over a wide area, sufficiently diluted that you smell it but faintly. Like those banks that are now "too big to fail," is Google really "too big to infringe"?
That is pernicious nonsense. The Google Books project has the potential to become one of the great information-gathering activities in human history -- every book (just about), at everyone's fingertips, searchable and instantly accessible from any corner of the globe. And we want to deter that?? Because that will decrease "respect for IP laws"? Talk about putting the cart before the horse!! Because it will inflict some sort of terrible "harm" on copyright holders? I'm not terribly sympathetic. Copyright, as Jefferson stressed so long ago, is a "social right" -- given by society because we feel it serves useful ends (incentivizing authors to produce new creative works). When it ceases to serve those ends, it should be eliminated. The Google Books project is another example of how copyright interests, these days, do little more than obstruct useful innovations. There are 7 million (or more) out of print books that Google would like to place on-line where they can actually be accessed and read. I'm sorry if that infringes someone's copyright, but really -- in what way is society better off, exactly, from recognizing the copyright holder's rights in this circumstance?
But that's not to say there aren't worrisome things about the project. Grimmelmann points to some of them, particularly related to antitrust concerns, in his paper. And separately, I've joined a group of authors, organized by the EFF and Stanford's Center for Internet and Society, that is preparing to challenge the settlement on privacy grounds. As it stands, Google will be able to obtain a staggering amount of information about what you and I (and everyone else in the world) is reading, and I want to be sure that that information is destroyed before it can be misused. More on that side of the issue in a later posting.