One of the problems with complex, sophisticated settlements such as the one proposed between Google and its plaintiffs is that one inevitably focuses on the text itself and the problems found directly therein.  It is much harder to look through the lens of what could have been, or might have been, with enough objectivity to inform constructive critiques.

However, throughout the settlement, there are sections of text which should raise eyebrows -- perhaps not of everyone, but of one party or another.  For me, a case in point lies in 3.10 (c), Integrity of the Text:

(c) Integrity of the Text.

(i) No Alteration of Text. Except as expressly authorized by the Rightsholder or the Registry, or in this Settlement Agreement, Google may not intentionally alter the text of a Book or Insert when displayed to users. Changes in the formatting or presentation of text are not considered to be alteration of the text, e.g., for the Accommodated Service.

(ii) Hyperlinks and Book Annotations. Except as expressly authorized by the Rightsholder or the Registry, Google may not add hyperlinks to any content within a page of a Book or facilitate the sharing of Book Annotations, except that Google may:

(1) add hyperlinks within the Book for specific internal references from text contained within the Book to other sections of the Book, such as from a table of contents entry to the referenced page, from a page number in the index to the page, or from internal references in the Book to footnotes, endnotes, bibliographical material, appendices, figures, and illustrations,

(2) add a hyperlink from an explicit reference in the Book to an online version of an external source cited in a footnote, endnote, or bibliographical material,

(3) add a hyperlink to a URL that the Rightsholder included in a Book,

(4) temporarily highlight or otherwise emphasize words in response to a user’s action, so long as such highlight or emphasis appears only on the user’s monitor and/or on a page printed by such user, and

(5) Subject to the Rightsholder’s right to exclude its Books from the Book Annotation sharing feature, allow a user to make Book Annotations for the user’s own personal use and to share those Book Annotations with a limited number of other users ...

(iii) Advertising Content. Google may not place on, behind or over the contents of a Book or portion thereof (including on Preview Use pages or Snippet Display pages), as displayed to a user, any pop-up, pop-under, or any other types of advertisements or content of any kind.  ...

I include this much of the text because to observe that there are a lot of prohibitions placed on what Google can do with the text, and the overall intent is incredibly conservative.  (There are excellent exclusions for reading-disabled, e.g., the sight handicapped).  Section 3.10 is presumably a publisher-originating constraint to preserve the "authenticity" of the text.  Without rants or wails, the constraint probably has a lot less to do with the conservatism of publishers, per se, than the complicated rights issues that might devolve from derivatives.

And that is where we have to wonder in part what might be lost if some of these battles do not wind up in court.  Class action judgments may move us forward in some important ways, but they also close off other paths that are at least as significant in terms of innovation.

Today, I read in Ethan Zuckerman's wonderful blog, "... My heart's in Africa", an eloquent plea to remember the diverse linguistic background embodied in the network of personal expression that is blossoming online, The polygot internet:

For the the Internet to fulfill its most ambitious promises, we need to recognize translation as one of the core challenges to an open, shared and collectively governed internet. Many of us share a vision of the Internet as a place where the good ideas of any person in any country can influence thought and opinion around the world. This vision can only be realized if we accept the challenge of a polyglot internet and build tools and systems to bridge and translate between the hundreds of languages represented online.

With Google Book Search and the settlement, we have one of the most amazing possibilities:  translation of a great corpus of the world's literature.  It would not be perfect, but it would be liberating beyond anything we could have presently imagined for delivering information and knowledge into the hands of others.   It would not be beyond the pale, e.g., for Google to machine translate all non-fiction works into a limited number of languages, and enable search and translated reading against them.  It would not need to assume a high fidelity reconstruction of the text in any language, but a rough and ready translation, presented perhaps through something akin to today's "Snippet view" that preserved the market for authorized translations.  Mass machine translation is not a translation of a work, per se, but rather a liberation of the constraints of language in the discovery of knowledge.

And it is likely not to be.  If that prognosis is true, that is a tragically lost opportunity.