All commentators, including Pam and Randy Picker (in his post below) note that the settlement is being revised (James Grimmelmann speculates that the negotiations are “frantic”).
At a very mundane, pragmatic level, revising the settlement to meet the DoJ’s objections (and the anticipated judicial response) seems both wise and necessary.
It also seems like an absolutely crazy way to make what (at one level) are deep, structural changes to copyright policy. Between representing the interests of living authors, dead authors, American authors, non-American authors, current readers and users, unknown and future readers and users, publishers, archives, libraries, and scholars (and I’ve probably left out a constituency or two or three), designing a digital commons of published texts — that’s what the Google deal aspires to do — is the sort of thing that should, I would imagine, take more than a “frantic” effort. It should be both considered and a kind of legal moment.
Out in California, people are talking about holding a constitutional convention to break the death grip that holds state politics (and the state’s economy) in its grasp. That death grip is attributable largely to the referendum system. Californians adopted governance by referendum decades ago, as a way to break the death grip of the robber barons. Now the cure of the referendum itself, among many other problems, is worse than the disease. The GBS strikes me as something like a referendum on the current copyright system: rather than repairing the statute, the parties are doing their best to design around it, encrusting the statute with an elaborate, detailed scheme to give authors and readers what authors and readers likely would have if the statute were better suited to modern needs in the first place.
It is probably too late to think about the IP equivalent of a constitutional convention in any but hypothetical terms. Even if there were the copyright equivalent of the mechanism that the Californians are trying to use, it is fair to doubt the likelihood that everyone could sit down in a room, a virtual room, or a series of both or either, and work toward a comprehensive new system in good faith. That is more or less the approach that gave us the 1976 Copyright Act, and that process, for all of its success in producing a new statute, was deeply flawed. But I wonder what the output of a 21st century “copyright convention” would or could be, and I wonder what kind of referenda to fix the referenda — litigation and legislation to fix whatever form the GBS settlement eventually takes — we will need and see in the future.