GBS: Pam Samuelson, Part II (Antitrust)

Her basic analysis will not be surprising to readers of this blog. Interesting points to note:

  • Samuelson treats the relevant market as the “market for digital books.” (I’ve heard arguments for both smaller and larger definitions.)
  • Consistent with her concerns about academic research and scholarly libraries, she focuses on the Institutional Subscription. (I’ve written more about the Consumer Purchase program.)
  • Some the factors she cites when discussing whether that Google could monopolize the digital books market (or markets), such as Google’s five-year head start, may not directly matter at this stage. Given the general Section 2 rule that mere acquisition of a monopoly is not in itself unlawful, Google’s existing market position doesn’t seem directly relevant to the settlement. This is a reason that my own writing has had more of a Section 1 slant, treating the settlement more as an attempt by copyright holders to combine their rights. This isn’t to say that these other factors are irrelevant; if Google ever starts “price-gouging,” in Samuelson’s phrase, its head start would matter a lot in the analysis of how contestable the market is.
  • This post is longer on analysis of possibilities and arguments and shorter on Samuelson’s own voice than her first post. The tone is scholarly, precise, and open.
  • It’s been tweeted four times so far.