I've been promising more on Robert Darnton's 17 December NYRB piece "Google and the New Digital Future," and here it is at last. Darnton begins by comparing the original 9 November date by which Google and its allies had to file the revised settlement agreement to historical events of 9 November (the fall of the Berlin Wall, Kristallnacht, the Meiji Restoration, Bonaparte's coup), noting that the comparison was appropriate because the "seemingly small-scale squabble over copyright looked likely to determine the digital future for all of us." He continues by noting that the terms of the settlement "will have a profound effect on the book industry for the forseeable future," and highlights the probable positive and negative consequences of the settlement's approval.
Darnton is quite right to point out that this "case may take years to work its way through the courts. Meanwhile, Google will go on digitizing; and as the legal situation evolves, it may devise further revisions of the settlement (GBS 3.0, GBS 4.0, etc.). The public will have to study all the new versions of the settlement in order to stay informed about the rules of the game while the game is being played. Who ultimately wins is not simply a matter of competition among potential entrepreneurs but an issue of enormous importance to everyone who cares about books, even though the public is reduced to the role of spectator."
Much of the rest of Darnton's essay is devoted to the critiques of the settlement leveled by the French and German governments, which stress what Darnton terms the "higher values represented by their national literatures." The French arguments "emphasized the unique character of the book, 'a product unlike other products' - its power to capture creativity, to enrich civilization, and to promote diversity, which, they claimed, would be compromised by Google's commitment to commercialization." The Germans focused on what they perceived as Google's threats to privacy rights, and both governments "condemned the settlement for sanctioning the 'uncontrolled, autocratic concentration of power in a single corporate entity,' which threatened the 'free exchange of ideas through literature.'" Darnton notes that these arguments and their subsidiaries were made by many other organizations among the plethora of filings submitted to the judge overseeing the agreement.
Darnton also hones in on the ways in which the revised settlement (GBS 2.0) seems to have taken its cues from the concerns outlined by the Department of Justice, but concludes that "GBS 2.0 does not ... differ in essentials from GBS 1.0. It largely ignores the objections of foreign governments" (except that it excludes books not published in the US, UK, Canada and Australia). Going on the reactions of the Open Book Alliance and other opponents to the settlement, Darnton suspects they probably won't be placated by the revisions. I agree.
Finally, Darnton proposes two possible solutions to the legal logjam: one, the more ambitious, would see Congress making a law to settle the big questions: "how to adjust copyright, deal with orphan books, and compensate Google for its investment in digitizing," and by doing so creating a "truly public library" or "national digital library." In the other solution, Darnton proposes that Congress grant the right to digitize out-of-copyright and orphan works to nonprofit groups (he suggests the Internet Archive). He suggests this project, to be spread over 10-20 years, might cost $750 million, and "meanwhile, Google and anyone else would be free to exploit the commercial sector."
The whole question of copyright in general is one I think we (or I, anyway) need to start thinking more about, and I expect I'll be writing about that more in the future. I agree with Darnton that either of these solutions would be entirely appropriate, and that a national investment in creating a carefully-managed and freely-accessible digital library would be entirely worth it. Let's keep talking about it, and not let this proposal fade into oblivion.
As he says, who knows how this is all going to shake out. What's becoming increasingly clear is that we all have a stake in the outcome, and that the disposition of this settlement will have an impact on the ways in which we all use books well into the future. Those of us interested in this issues are going to have to stay tuned and pay attention.