As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.
But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.
Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?
Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.
There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected [...]