Tim Wu, Save the Google Book Search Deal!, Slate (Sept. 29, 2009):

Some people think it should be the government, not Google, that creates online libraries: Don’t hold your breath. Instead, the best analogy for the out-of-print version of Google Book Search may be a public utility. Think of it like a sewer system. Companies rarely build sewers without prodding or—dare I say it—a monopoly of some kind. The Anglo-American tradition, in fact, is to put a private company in charge of such public callings, especially those that require large investments. And in the big picture, that is what’s really going on here: the creation of an unusual kind of public utility to provide better access to old and unpopular books. …

All that said, a careful look at the settlement agreement shows that it isn’t perfect and needs to be better to serve the public. The Justice Department … have noticed that the deal may make it just a little too easy for publishers to fix prices even on their in-print e-books. That’s at least one thing that needs to change. At the same time, the DoJ needs to appreciate the inherent fragility of the project and be careful not to open it up to so many parties that the whole thing explodes.

I say let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain. This is the essence of the utility model: Let a private party do something in the public’s interest that would not happen otherwise while keeping an eye on what happens. …

But if you want to put Google in its place, the book project is the wrong way to do so. It is Google’s monopoly on Internet search that is valuable and potentially dangerous, not a quixotic project to provide access to unpopular books. So hold on to that sense of wariness, but understand that in this case, it’s misplaced. To punish Google by killing Book Search would be like punishing Andrew Carnegie by blowing up Carnegie Hall.

“I say let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain.”

So. Google & Company are rewarded with tens of thousands of in-copyright works from all over the world without trying in the least to contact the owners of the works for permission to make digital printing plates. If Google is allowed to keep these digital printing plates without accepting responsibly for copyright infringement, I feel it would be another example of Americans defining laws to suit their own needs. “Card Catalogue” my ass. Douglas Fevens Halifax, Nova Scotia The University of Wisconsin, Google, & Me

There is a problem that Professor Wu is neglecting in his enthusiasm: the rights to these books don’t belong to the US public, any more than they belong to Google, or to the class counsel in the class action case (who, if I understood your exposition aright, are the only entities currently empowered to negotiate with Google on this matter).

I note with amusement but little surprise that he speaks of Google’s book enterprise as a ‘library’. One of the fascinating features of this whole episode is the way the labels applied to this enterprise are frequently switched depending (typically) on the audience to whom the speaker is trying to promote it. When it is being promoted as a ‘public good’ it is a library; when it is being promoted as a benefit to authors and other rights-holders, it is a sales outlet.

Timothy B. Lee has responded to Tim Wu’s piece:

I can understand why folks like Prof. Wu are excited about the opportunity this case creates. The orphan works problem is real, and the legislative process is long, tedious, and messy. The class action mechanism gives advocates of orphan works reform a kind of deus ex machina: dramatic reform without the kind of cynical horse-trading that normally comes with legislation. Moreover, because of the way the settlement process works, legal academics like Profs. Wu, Grimmelmann, and Picker probably have significantly more influence over the outcome of the process than they do over orphan works legislation in Congress. And I don’t necessarily regard that as a bad thing: if I had to pick three people to re-shape the publishing industry, they’d all be on my short list.

But we’re a democracy, not a nation ruled by enlightened philosopher kings. Wu warns the judge to “be careful not to open it up to so many parties that the whole thing explodes.” But if the whole thing will “explode” if it’s opened up “to so many parties,” that seems like a sign that some of those parties are getting short-changed.

Gillian Spraggs is right to quibble about mislabeling the Google Book data base as a “library” . Words do matter and labels matter very much. The scanned Google Book data base is no more a library than iTunes is. Until the court case is settled, it is really the mother-of-all pirated ,unauthorized file shared ,digitized assemblage, which has aspirations to be a giant privately controlled, limited access, digital bookstore.It is not and never has been and never will be a Library. Those court filed Objections which described the Google-University Library deals and the original, now withdrawn GBS as Joint Ventures are really spot on, and should serve as the starting point for regulatory,legislative and scholarly analysis from hereon.