The Crux of the Google Book Settlement

The crux of the Google Book settlement will be whether the Court effectively sanctions the creation of one de facto world digital book library, or whether it will facilitate the continued proliferation of many libraries of digital books throughout the world. 

• Put differently, will the legal settlement of the greatest alleged book theft in world history -- de facto concentrate control over access to digital books into the hands of only one entity -- Google (the alleged copyright violator)...
• Or will the settlement preserve the current longstanding competitive/cooperative system of  public, private, and academic libraries where control over access to books is dispersed among many independent and diverse organizations around the country and the world?  

The Internet Archive, a "non-profit library," recently petitioned the Court to try and ensure the diverse latter outcome and not the concentrated former outcome.

• If The Internet Archive and "other similarly situated parties" are not permitted to intervene as a party to the settlement, the settlement process effectively would unfairly exclude the entire class of Google's competitors. 
• Such a broad exclusion of clearly interested parties (that could help protect the interests of the public, and competition) would not advance the legitimacy, workability or sustainability of any court-approved settlement.  
• The constitution, precedent, common sense, fair play, due process, judicial efficiency, and due deference to the Legislative Branch would all strongly argue for other interested parties to be included in the settlement.  

I believe it is more likely than not that the court will:

• Allow other parties like The Internet Archive to intervene in the settlement;
• Recognize the profound competitive imbalance/distortion in the proposed settlement; and
• Grant Google's competitors similar access to orphan works that Google enjoys under the settlement.

The court should have little interest in:

• Rewarding the alleged mass copyright violator Google, with a court-sanctioned grant of permanent de facto monopoly control over the access to roughly 5 million "orphan work" books;
• Changing the current, well-functioning library system and model that fosters a competitive, cooperative, independent, and diverse system of access to digital book libraries -- with a new highly-concentrated system of access to digital books;
• Facilitating a concentrated system of access to digital books that would be substantially more susceptible to censorship of, or discrimination against, unpopular views -- than the current system would;
• Ensconcing the information access bias of one organizing principle, Google's famed PageRank algorithm, which organizes information based on crowd popularity not necessarily qualitative, educational, or historical merit -- over all other information access organizing principles; or 
• Fostering a highly-concentrated system that is susceptible to a single point of failure like the tragic loss of ancient Library of Alexandria.       

In sum, the Google book settlement will effectively set the trajectory, process and model for how digital books are found, accessed and monetized going forward around the world.

• The court has an awesome responsibility here that normally would be handled by the Legislative Branch with substantial input from the Executive Branch and the public.
• Thus, the court is unlikely to dismiss out of hand the breadth, depth, and legitimacy of the interests currently on the outside of the settlement seeking to get inside the settlement.
• In short, inclusion is more likely than exclusion when the stakes are so high, far-reaching and long lasting.