Judge Chin is still considering his decision in the case of Google ….. His ruling may come this week, next week, or in a few months. Only he and his team have a good idea of that. Meanwhile Professor Pam Samuelson has produced a very thorough, balanced, somewhat critical review of the proposed Settlement and of Google’s efforts in a 60 page paper for the Minnesota Law Review. If you haven’t been following GBS too closely, this is an excellent place to get an insightful review and summary of what has been going on. If, like several hundred lawyers and digital library experts you have been following GBS too closely for years, you will already have read her piece and it will have reminded you of stuff that you had forgotten. Her conclusion:

The future of public access to the cultural heritage of humankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.
Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil. Google Books Search and the Future of Books in Cyberspace

I have been a ‘qualified’ supporter of Google Books Search from the beginning. The qualifications are coming more to the fore. Whatever Judge Chin decides, we can be sure that Google Books Search is going to be mired in legal complexities for years to come. The international ramifications of the venture are hopeless and will sap energy and innovation. Google Books Search, if it is approved, will work badly and too patchily for European literature and libraries, and it will be especially rough and unsatisfactory for British literature, libraries and universities. It will be a mess of conflicting and irresolvable copyright regimes for years. Google itself seems to find it hard to innovate or roll out new services. A clean and direct implementation of Google Editions has been ‘promised’ for this summer, or this year, but it has been promised before. Several times. No doubt part of the reason that it is being held up is that its roll out may have unpredictable or unwelcome legal consequences (or unwelcome splash-back from the court of public opinion). Google Editions when it comes should be a very useful and popular service, but Google have to get it out of the door before it can properly grow and bed itself into the array of digital books that is now mushrooming.

Pamela Samuelson points to the lack of substance in Google’s mantra ‘we will not be evil’; but its arguable that Google has failed in a more fundamental and troubling way. It has failed to sacrifice the idols of its founders; it has failed in corporate governance. Page and Brin met and worked together in a project for digital libraries. The Google Books Search proposition was clearly motivated in part by Page’s promise to digitize the libraries of his alma mater the University of Michigan. The two big leaps in the Google Books enterprise, were first to dream of digitizing millions of books in one universal searchable index (the original project, defended by an appeal to ‘fair use’ and the transformative effect of a large database of books) and then secondly to aim for a commercial settlement to the ‘class action’ suite, through which Google, the authors and publishers would effectively enclose, exploit and privatize millions of copyrights for which they cannot claim ownership. I suspect that the Google Books project, and especially the Library component, has always been too close to the goals and aspirations of Google’s young founders. The big and aggressive steps that the company has taken to stake out its claims have been part of the founding DNA, the dreams that brought Brin and Page together. The third ‘founder’, Erik Schmidt joined the company in 2001. At about that time the initial steps for the Google Books enterprise may have been taken, perhaps Schmidt may have been too much the ‘new boy’ to question the goals of the original founders. Schmidt should have spotted that there were copyright problems, he should have noticed that there were at least issues of politesse involved in digitizing and then using for profit, stuff that did not belong to Google or to the Universities with which they worked. I bet that he has since then wished that the aims of the Google Books undertaking were more clearly understood within and without the company. And more cautiously and generously drawn. At some point Google has to take a much more humble view of its role, and at that point things might start to work in its favour.