Cracks in the Google Book Settlement

Cracks are appearing in the foundation of the Google Book Settlement, which suggests some of it may end up crumbling under the current harsh weather of public scrutiny.

The most recent crack to appear was the Court's quick rejection of Google's preemptory proposal to extend the opt-out notice period for authors for another sixty days, and quick approval of the request by a small coalition of rights holders for four more months until September 4th.  

• This suggests that the court was not impressed with Google's effort to date to notify potentially affected authors, a key component of good faith in the proposed settlement.

An ITIF forum on the Google Book Settlement at the Library of Congress last week exposed some other big cracks in the foundation of the settlement.

• First, the American Library Association asked for the court to exercise intense oversight of the settlement because it would give Google unprecedented control and leave libraries with no real recourse. Moreover, the only reason that the ALA did not seek to become a party to the settlement was that it could not afford the cost and potential future legal liability entailed in the settlement.
• Second, the ALA complained that the agreement made no effort to protect the privacy rights of individuals doing research. Remarkably, the Google Representative, Dan Clancy, admitted privacy concerns never occured to Google, and agreed that it needed to be addressed.
  • This suggests that the settlement has other big holes/problems that must be addressed.
• Third, the Internet Archive has asked to intervene as an affected party in the settlement and is petitioning to remove orphan works entirely from the settlement, in part becuase the settlment would give Google monopoly-like control over five million digitized books.
  • This suggests there is a very large crack in the base of the settlement, because exclusive control over orphan works is the key benefit to Google in the settlement after removing its large copyright liability.    

All this suggests there is growing momentum against the Google Book Settlement surviving in its current form. For the settlement to weather the process of public scutiny, it looks like it will take some serious patchwork and rebuilding.

• It looks untenable for Google to keep legitimate interested parties, like the Internet Archive out of the settlement.
• It also looks like the settlement will have to have major new parts re-negotiated, removed, and/or added, on reader privacy, on the full access by competitors to orphan works, and on safeguards so that new or unforeseen issues can be addressed through court oversight.   

The open question is whether all the cracks in the foundation of the Google Book Settlement will be repaired -- or whether it will crumble under its own out-of-balance and ill-conceived weight?