James Grimmelmann, The Amended Google Books Settlement Is Still Exclusive, CPI Antitrust Journal, January 2010:
The deal that Google would get under the proposed amended settlement in the Authors Guild case is exclusive in one very important sense. Many out-of-print books are so-called “orphan works”: they’re in copyright, but their copyright owners can’t be found. If you or I start printing new copies of these books, we’d be copyright infringers, subject to statutory damages of up to $150,000 a book—or even jail time. Google, on the other hand, will be authorized to sell online copies of these books. That’s exclusivity: permission to do what is forbidden to others.
Some pro-settlement commentators have challenged this view. They believe that the market for electronic editions of orphan books is open to Google’s competitors. They make three principal claims: first, that the settlement creates no new entry barriers; second, that it explicitly enables the new Book Rights Registry to issue licenses to competitors; and third, that competitors could reasonably expect to obtain class-action settlements substantially identical to Google’s. All three of these propositions are wrong. In this essay, I will explain why.
Here is an ungated PDF version for those of you who, like myself, are not subscribers to the CPI Antitrust Journal. This, by the way, is the journal formerly known as Global Competition Policy; it ran a special issue on the settlement in the fall.