GBS: An Introduction to Competition Concerns in the Google Books Settlement

Rudolph J.R. Peritz and Marc Miller have written a short article with a self-explanatory title: An Introduction to Competition Concerns in the Google Books Settlement. Here’s the abstract:

Google started its Google Books project in 2004 with the intent to create a digital library of the world’s books. There has not been such a grand plan since students of Aristotle began to gather the world’s knowledge in the Library of Alexandria some 24 centuries ago. The world’s knowledge has changed. And so has its political economy. Twenty-first century public policy questions have been interjected to delay and reshape Google’s project, questions that did not concern the royal sponsors of the ancient Library. This review takes up questions of competition policy raised in the United States, the corporate site for Google’s virtual Library of Alexandria.

After presenting the factual background to the Google Books project and the procedural history of the current class-action lawsuit, we examine two clusters of competition issues concerning the Google Books project: First, whether a class action settlement in litigation between private parties is an appropriate vehicle for making public policy. Second, whether Google’s actions are on balance anticompetitive under U.S. antitrust laws. Antitrust concerns will be given the lion’s share of attention.

I’m particularly proud to post this link because Rudy is one of my colleagues and Marc is one of my students. What began as a class paper turned into a collaboration. Congratulations to Marc; this is an example of why I enjoy working with NYLS students so much.

The article happily ignores the fact that scanning all that copyrighted material without the copyright holders’ consent is a massive violation of both law and ethics, and goes right on to discuss how the violation should be used and continued for “the public good,” as well as that of all not parties to the Settlement who also want to massively violate copyright law.

Why can’t the public just buy in-print books outside the Settlement, and buy out-of-print books from used booksellers or take them out of the library? The libraries who lent the books for scanning will also lend them for interlibrary loan.

Why is it that the creators of the works are not supposed to have any say in what is done “for the public good?” If the Settlement lowers book prices (and prices will almost certainly be lowered by piracy, against which the Settlement guarantees no protection), why should the creators of works suffer from those low prices, plus the loss of control over how their works are used?

Why are creators of works supposed to give up their incomes for “the public good,” while doctors, lawyers, and many other professionals who contribute to society expect to be handsomely paid?

Oh yes, and the reference to how the Internet Archive should concentrate on scanning (or hosting) books “locked away” in subscription databases. This is like the phrase I’ve often seen elsewhere, about publications “locked away behind publisher’ firewalls.” Sorry, not being free does not translate to “unavailable.”


What you are pointing to is that there is already a sort of ‘Google’ books program , the ‘university library’ book program. There is a strong whiff of both, the privatization of Commons and of the creation of extra, redundant management costs about the GBS Precisely because it is not clearly necessary from the point of view of the common good.

The weakest part of the claim of an class representative status for Any authors group in any matter of economic rights is this: the economic basis for writing is very very disparate. And it is also the weakness in the claims made, on behalf of the GBS, of net economic benefit to the common good.

For some authors payment comes in the form of wages or retainers from things like newspapers. For some Authors publication is a necessary cost paid to gain the prestige needed to advance in the academic field. For some authors writing is of the ‘local history’ private hobby kind. For some Authors publication can be a form of advertising for paid live performance, readings, appearances on panel shows on television.. so on.

And for some authors income derives from the sale of the books they write.

It is a nonsense to think that these very different kinds of Authors have anything economically in common. For some free distribution is an economic benefit ,for others it is definitely not. The only good net economic result to all, to the common would be the retaining of the individual rightholders right to say no, or cut a deal that suits their individual situation.

Democracy ,free individual choice, society’s, look bad until you look at the alternatives


What I’m pointing out is that in the US, many university, public, and institutional libraries (such as museum libraries) participate in an interlibrary loan program of printed books, which is long-standing and which has absolutely nothing to do with Google. I believe most major libraries are in this program.

The books these libraries are willing to lend out via other libraries are listed in a huge database called Worldcat. The reader or researcher goes to his/her local public library, university library, in short any library where he/she holds a library card. If the library does not have the book on its own shelves, a librarian then looks it up in Worldcat and says, “There are X libraries from which we can interlibrary loan this book.” The librarian then contacts one or two. If the book is out on loan or otherwise unavailable, the librarian proceeds to the next library, and so on until, almost always, the book is mailed to the borrowing library. The librarian then calls or emails the reader/researcher and says, “Your book is ready for you to pick up.” The reader/researcher gets to hold the book for several weeks, then returns it to the local library who mails it back to the library of origin.

In fact, the Worldcat database is online and accessible to everyone, and I often look up books there before requesting them to save a librarian the trouble. The URL is:

Via the interlibrary loan program, the books in prominent university libraries (and many, many other libraries) are in fact available to members of the public who live thousands of miles away. Without anyone scanning them and without any help from Google’s “library project.”

In addition, direct borrowing from a university library may be possible to the public. In my experience, the local universities are happy to accept anyone in the alumni association who ever took a weekend workshop, or any course at all, from the university, regardless of whether they were awarded a degree. Often membership in the alumni association includes library privileges.

In addition, I have gotten a library card at one local university by merely informing someone at the desk of the main library that I was not a student, but that I wanted to borrow books. She asked if I was a member of the alumni association. I said no. Then she said for members of the general public who were not members of the alumni association, a card for one year’s full use of the library cost $20. So I paid for a card.

All the rhetoric about books being “locked away” in libraries unless they are all scanned, online, and/or free, is so much hooey.

Frances, I agree completely. Universities are also subjected to ethical requirements than Google. The re-use of information supplied for one research purpose, without active consent, is not permissible under human ethics codes.


I agree that the universities should be paying attention to ethics. Alas, the university and other libraries, in agreeing by contract with Google to not only supply millions of copyrighted books for systematic scanning but to trade those scans with other libraries, did not pay attention to ethics—or copyright law.

Frances, I don’t know anything about American universities, however, my brother-in-law is a professor of pharamacology, and he is in no doubt that this project would be inviolation of ethical codes of conduct that apply in Australian universities.

GBS (and laws being drafted in the UK and elsewhere) is being presented as a solution to a radically new problem, and therefore, justifies radical changes to many common law legal concepts. What is most striking about the GBS and the problem it claims to solve, is how familiar it is. It is actually a variation on an old theme and it does not therefore need the radical overthrowing of huge areas of common law concepts. A solution can be found in variations on old themes.

In the United States, human subjects research is governed (where federal funding is involved) by regulations of the Department oF Health and Human Services. They apply to “research involving human subjects,” and “human subject” is defined in 45 CFR 46.102(f):

(f) Human subject means a living individual about whom an investigator (whether professional or student) conducting research obtains

(1) Data through intervention or interaction with the individual, or

(2) Identifiable private information.

Intervention includes both physical procedures by which data are gathered (for example, venipuncture) and manipulations of the subject or the subject’s environment that are performed for research purposes. Interaction includes communication or interpersonal contact between investigator and subject. Private information includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record). …

Reading, scanning, or making available a book written and published by a person is not “intervention” or “interaction” with that person; nor is it “private” (because the book was published). The Google Books project is categorically not human subjects research, and the legal threshold—which is also generally considered the ethical threshold by American IRBs—is not met.

If the info scanned contains research papers that included information given for a particular purpose then; any reuse of that info for any other purpose without direct consent is a violation of the rules in Australia. (It is a bit like the problem of inserts. In this case owning the copyright dos not = owning the individual consent to the re-use of the info contained in the paper) Republishing in a very different and *much more public context than a uni journal for the purpose of creating audiences that Google can sell to advertisers, is a bit different to an inter/library loan.

John, do you have a citation on “the rules in Australia?” I’ve examined the National Statement on Ethical Conduct in Human Research, and I don’t think its restrictions sweep that broadly.

I would have to ask my brother in law -He is a respected ‘expert witness’ - I expect he can supply details.

The rules are pretty strict . My wife ( an historian) was a few years back writing about two living artists, she had to prove that this would not even accidentally result in harmful comparisons between them.

Human ethics originated in the area of the ‘medical’ type of research , and the same standards that apply to info like individual genotypes applies to all info.

Am waiting to hear back from him , he is pretty busy. may be next week

I think its another of those ‘precisely vague’ areas here. Some re-uses are fine some are not. From time to time major exceptions are of course made - a clear net public gain, finding the origins of the AIDS virus is a example. But it is always on a case by case basis, not on a class basis.

Ethics codes are of course not the same as the law, the tests for ‘innocent and guilty’ are quite different and so on. There is a ethical/moral aspect to the problem of retrospective variations of the ‘common understanding’ of the nature of the contract at the time it was made, years ago,that is additional to any letter of the law problem. There is also a pragmatic problem; it is unlikely to encourage people to come forward and participate in research.

It is my understanding ( could well be wrong) that the use made by Google of this material would not be (as a class of usage) in accordance with the rules re ethical research


The payments made by Google to the Book registry; will they be , for Google, a tax deductible expense?