Lawrence Lessig contributed a 40 min discussion to the Berkman Center’s seminar “Alternative Approaches to Open Digital Libraries in the Shadow of the Google Book Search Settlement”. (In the ‘shadow’ of the Google Settlement — doesnt this make it sound a bit ominous?)

He opens with a comparison between Tiger/Kitten and Tiger/Tiger. Google has to be the Tiger. So although not explicitly anti-Google, his rather mournful assessment of the Google project is moving away from it. Watch out for the claws. He recognises that the GBS Settlement may represent progress and have some positive results, there are even so a lot of downsides: “We need a framework to encourage experimentation”; “We should not trust our culture to kittens that turn into tigers”; There is a tendency in the extraordinarily complex settlement agreement “against the ecology of free access which we have had since the invention of printing”.

Lessig’s position is not hard and fast, and tries to avoid being anti-Google. There is something rather soft, touchy-feely, about his extreme example of what is happening to books: it is far-fetched, in my view, to suppose that books will be as ham-strung with temporary permissions as documentary films. It is not clear what his recommendation really amount to. The ‘appropriate or the best ecology of access’ is a vague idea.

But Lessig is putting his finger on some of the tender issues in the Google project. There is a worrying tendency for the Google Books project to dissappear in a vastly complicated and centralised network of permissions, concessions, exceptions, pettifogging access restrictions, content omissions and database-driven implementation decisions which may yet stifle the project. Or, at the very least, cramp its style. With Google Book Search, code is very much becoming and making law, but not in ways that Lessig can welcome. Something looser, more rounded, more democratic and multi-polar is needed. The ultimate and inevitable failure of Google’s project as it is currently shaped is that it is not putting books in the centre of its intentions. Books are not being given room to breathe.