I go away for two days in the mountains and come back to find the Google Books Settlement II, a 173 page renegotiated version of the original deal (red-lined). Catch up with Grimmelmann.
I am not sure that I will read the new contract; getting through the first version was quite a strain! Here is one view of why it matters and why it doesnt.
The Google Book Settlement matters because something pretty much like what is envisaged in the Settlement is going to happen. And that is a good thing. Google has 10 million books scanned and databased in their servers. They are revved up and no doubt waiting to go. A large part of the most valuable human knowledge of the twentieth century will be accessible and will be being digitally read in American universities from some time in 2010 (that is a very good thing; a very bad thing is that they will NOT be available in the rest of the world, and the legal technicians have not much clue about how that broader accessibility can happen). Even if the judge were to reject the Settlement, even if the DOJ were to file and insist upon some swingeing limitations to the scope of the agreement, most books will be Googled from now on. 10 million books have already been databased in the way pioneered by the Google Books system, many of them at the express request of their publishers. Some aspects of the Google project have been very controversial, which is why we have a court case and why the legal hostilities may meander on for years yet. The outcome is predictably messy but the change has occurred.
The publishing paradigm has shifted and most books will now be accessible and searchable in various ways via Google (and perhaps, let us hope, via alternative search engines). Five years ago it was by no means obvious that all books would be digitised en masse, in their entirety (even many of the bindings), full text searchable, that they would be page-rendered, that they would be straightforwardly citeable in something like the ways print scholars have cited books for centuries (volume, chapter, page), that they would be readable in much the same way as ordinary web pages, that illustrations and indexes should be in place (though for many of the 20th Century books this will not be the case — as a direct result of the Settlement orphan illustrations are more orphan than the texts). None of this was settled in 2004.
So there has been a revolutionary shift in the publishing paradigm. But now for the other shoe: I am not confident that the Google ‘victory’ in the case of the Settlement, will be seen that way in the future. Thomas Kuhn who coined the usage of ‘paradigm shift’ to explain the way in which with a scientific revolution a period of upheaval with its paradigm shift, then led to a period of ‘normal science’ when investigations proceeded under the shelter of the new paradigm. I am not sure that Google will now find itself in a period of normal science or calmer waters. Google has made a tremendous step forward, with its vision of the comprehensive digital database of published books, but the suspicion is growing that this is not a terminus. The Googled library/bookshop of all published literature is not a finished product and it is highly probable that it will fairly soon be overtaken by other models and by other paradigm shifting changes in the technology. I have the very strong intuition (it is merely that and I can not prove it) that digital books will soon be used in ways that surprise us greatly and have very little in common with the current operation of the Google Books service. We have barely started on the path of understanding how digital books can be used; and as an early entrant to the field, Google has every chance of finding itself out-innovated. Some Twitter-type of disruptive service will doubtless come along soon to show us how computation really should work with digital editions.
Google will surely be making the incumbent’s mistake if they suppose that the Settlement really settles, solves or finalizes the direction that digital book technology should now take. To quote the Scottish sage “I hae me doots”.
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