Einer Elhauge Is a Clever, Clever Man

At page 17 of the revised version of his essay, he writes:

For if Amazon, Microsoft, or any Google rival does in the future offer any books for new sale that are not derived from the Google scanning project, then (even if those books are currently out-of-print) those books will become “commercially available,” and then the settlement will by default exclude them from sale via Google. The settlement thus by definition does not give Google any default license or plausible de facto monopoly over any books that any rival would offer in the but-for world.

This is not a conclusive argument. For one thing, the heart of the antitrust issues have always been horizontal agreement among copyright owners and and illegitimately acquired exclusive access to unclaimed works, neither of which is quite at stake in this part of the discussion. But it is still a powerful, subtle point, worth reflecting on.

Whether availability in electronic from from a Google competitor would satisfy the substantive standard, as determined through the decision-making process, for such works to be considered “commercial available” for purposes of the settlement is unclear, and just one of many aspects of the settlement that will only be known or knowable after the opt-out deadline and after the settlement is approved and implemented. There are similar questions as to whether works available in PDF or other electronic form from authors’ own Web sites would be eventually determined to be “commercially available”, or the much larger number of works available through abebooks.com.