GBS: The Rest of GCP

I managed to get my hands on the remaining articles from the special GCP issue on the settlement.

First, we have Timothy Brennan’s The Proposed Google Book Settlement: Assessing Exclusionary Effects. Much of it has already been mooted by the rapid pace of events. For example, Brennan finds the DOJ’s position on Google’s ability to discount puzzling in light of the Supreme Court’s Leegin decision, which held that prohibitions on retailer discounting aren’t per se illegal. Interesting, but now irrelevant—the amended settlement gives Google power to offer any discounts it wants to (on its own dime, of course). The same goes for the MFN, which Brennan has some issues with—the MFN is gone, too.

After some mildly hand-wavy discussion of market foreclosure, Brennan closes with the following passage on orphan works:

The central concern of the commentaries is the settlement’s provisions regarding orphan works. One can fairly wonder how a settlement can cover a class whose members by definition cannot be identified. Leaving that aside, the case overall presents a puzzle about how one should treat property that is probably owned but where the owner cannot be found. The default view on this is not clear; one can think of this as equivalent to estray, e.g., defining obligations to find the owner of a lost wallet before the finder can legally keep the money.

The record in the Google Books case establishes that this is a significant issue. Even Hausman and Sidak, who are skeptical of arguments based on suppression of competition from orphan books, estimate that 9 percent of the books Google has copied are orphan books. One wonders if some doctrine in copyright akin to adverse possession in property law should apply. A copyrighted work could enter the public domain after it has been openly distributed for some amount of time. The distributor’s liability could be limited if it has undertaken due effort to find the copyright holder. Even if such a legal regime is a good idea, a separate issue is whether it should be the result of common law evolution, statutory intervention, or, as in this case, a settlement between Google and holders of non‐orphaned books.

This passage might have benefitted from citations to the state briefs on the application of unclaimed-property law, and to the literature on orphan works legislation, which would have imposed diligent-search requirement in exchange for a limitation of liability.

Next, we have Isabel Davies et al., Online Distribution of Copyright Works: Google Books in a Broader European Policy Context. This one is a readable summary of the European debates over the last few years. It closes with the sentiment:

The opposition to the Google Books issue and the time that it is taking to reach a settlement acceptable across the board in the United States creates the opportunity for Europe to take the lead and forge its own path with Europeana, perhaps producing a solution that will act as a blue print for digitization legislation on a global basis. The question remains whether Europe is prepared to step up and take the lead.

Now that Europe is basically out of the settlement, the issue is in theory easier to address, as there won’t be the American lawsuit complicating matters. But I’m skeptical that Euroope’s political apparatus will do much on the issue without the brash Americans pushing on it with their infernal lawsuit.

Finally, there’s Ian Forrester’s Google: The Benign Monopolist?. This one is mostly an overview of the settlement from the perspective of copyright policy. I imagine that the antitrust community will find it an interesting discussion of those issues, but for those already stepped in settlement lore, nothing in it will be new or surprising.