Last Friday, the Justice department (DoJ) effectively ended the debate on the Google Book Settlement (GBS). In an exceptionally well-thought-out, rational and practical submission, the DoJ established for everyone the parameters of the argument and the terms under which the GBS should be approved by the NY court. Google, AG and AAP don't have to agree to all of the suggested changes; there are both degrees and some negotiated offsets that will give the plaintiffs some flexibility in authoring the final, revised document, but what Google, AG and AAP will do is exhale a sigh of relief, incorporate many of the suggestions noted by DoJ and, as a consequence, will expect the court to approve the revised agreement. It is unlikely Judge Chin will preside over the final decision-- there simply isn't time before he (presumably) begins the approval process for his elevation to the Appeals Court. It's possible he will approve as is but with some oversight using specific guidelines to address imposed changes, but that would be unlikely given the 'importance' of this agreement to copyright law. More likely, this case will be passed on to a second judge. As a result, it could be another six months before the final revised version is approved by the court.
Encouragingly, the DoJ was balanced in its opinion, specifically noting the wide public interest that this content database will support. It is this argument that - in part - balanced some of their important concerns. Opponents took specific heart in this statement regarding DoJ's emphatic statement that the agreement should not be approved in its present form. It is important to remember that the DoJ and Judge Chin's court represent two separate arms of government and Chin is not obliged to accept all of the DoJ's statement out of hand. The DoJ's statement is wider in scope than the law upon which Judge Chin is to adjudicate: Specifically, potential impacts on competition that may result from this agreement. But in the context of a well-balanced, nuanced and implementable statement, the judge can use the DoJ statement to 'encourage' the plaintiffs to address some expansive concerns that, in the true interpretation of his remit, would otherwise be outside his immediate concern.
It is the opposition to this agreement that is, ironically, left out in the cold. Congratulations are in order for the success of the intense opposition to the agreement (or parts of it); however, the DoJ statement has established the future parameters of the arguments against. With the DoJ imprimatur now ranking the arguments, it would seem unlikely that any new argument or variation of the old will gain support: In their way, DoJ has validated all the legitimate arguments and anything outside of those will not now have 'legitimacy'. The plaintiffs benefit also because they no longer have a moving target, nor a need to 'read the tea leaves' from the Chin court: The requirements are now specific and actionable.
All this tells me that--unless AG, AAP and Google want to grasp defeat from the jaws of victory and ignore the DoJ statement (and they have already returned to the negotiating table so this is unlikely)-- this agreement will be approved with many of the changes DoJ has specified. Justice prevails for both sides of this argument.