GBS: Two Pro-Settlement Antitrust Papers

Einer Elhauge’s Why the Google Books Settlement Is Procompetitive, previously mentioned on this site, has been published in the Journal of Legal Analysis. The JLA is a peer-reviewed open-access journal with high editorial standards; it’s a good home for this sort of work. Particularly after the JLA’s editing, Elhauge’s paper remains the definitive pro-settlement antitrust analysis, better and more detailed than the parties’ own submissions to the court. Here is Elhauge’s final abstract:

Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of-copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed in-copyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for commercially unavailable books, which by definition would otherwise have no new output.

Also in the Elhaugian tradition is Yuan Ji’s Why the Google Book Settlement Should Be Approved: A Response to Antitrust Concerns and Suggestions for Regulation. Ji’s paper is notable for its Part III, which compares the settlement with other routes towards similar goals: such as compulsory licensing of orphan books to other competitors. Ji concludes that the settlement is superior to the status quo and to its major proposed alternatives, but could potentially be improved by adding an ASCAP/BMI-style consent decree. Judge Chin might also consider conditioning his approval on an independent validation of Google’s pricing algorithm by an outside entity. Here is Ji’s abstract:

This Article advocates for the approval of the pending Google Book Search settlement by responding to the antitrust concerns arising from the Amended Settlement Agreement. It contributes to existing commentaries on the settlement by pointing out that the proper antitrust analysis must take into account Google’s role as a two-sided platform, which serves two interdependent sets of customers. The settlement, if approved, will not grant exclusive orphan book access to Google or anticompetitive pricing power to the Rightsholders. Post-settlement regulatory alternatives are explored and the compulsory licensing of orphan books is rejected. Instead, this Article advocates for the explicit grant of licensing power to the Unclaimed Works Fiduciary and the Registry if the settlement’s legal ability to do is in dispute. Given GBS’s natural monopoly characteristics, another regulatory option is the imposition of a consent decree similar to those that ASCAP and BMI operate under.

Also of note: Ji is currently a law student. Like Eric Fraser and Chris Suarez, he’s she’s (my apologies for the error!) made a meaningful contribution to the public debate. While it can be a tremendous schlep to get up to speed on all of the legal details, the Google Books settlement remains a great subject for student writing. There’s simply so much to think about in it that it’s easy to find unturned stones. I would encourage any law students out there who are looking for note topics to consider writing on the settlement, and would be happy to talk about possible angles.

Speaking as an Artist I have been for years stuck over and over again by the way so many people talk about books ( and artworks) as as if ‘it’ was an impersonal abstract resource to be managed. ‘It’ is not a abstract ‘resource’ ( like say iron ore) simply to be exploited in the most efficient way; the books are individual human realities.

The ‘I know best’ tone of:

“For unclaimed in-copyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. ”

is breathtaking


Electronic rights are the new frontier and the creators of the works are the Native Americans, or the [insert original population now to be exploited for the “greater benefit” here].



Are you suggesting that the motives of this, Father-like ‘Protector of the Natives’, are not completely pure? Or even suggesting that Father might not know best? Or that the Grand Father might have big sharp teeth?

How could you!

The Google Settlement (and other people’s “electronic frontier” rhetoric) really has strong parallels to the colonization of the US. Comparatively powerful, technologically sophisticated, and (mostly) more aggressive peoples find a “land of opportunity” that is already occupied. The indigenous peoples are happy with their way of life, even though the colonists largely despise it. The colonists think the indigenous peoples are not exploiting all those resources nearly as much as they can be exploited, and therefore will not miss losing them to the colonists. Some colonists sincerely believe that they are doing the indigenous peoples a real favor and improving their lives.

The colonists offer the indigenous peoples business deals, such as trading land for glass beads, that the indigenous peoples are ignorant enough to think are fair value. Furthermore, many of the indigenous peoples believe the arrangement is “sharing” rather than an aggressive takeover, and they believe the colonists will honor their promises. The colonists don’t honor their promises. The more power they get, the more resources they take over.

The colonists eventually destroy enough of those supposedly boundless resources to endanger their own future. But when they first start the process they don’t worry about such endangerment, which seems impossible to them or at least a long way off.

The forests, oil, coal, etc., are largely gone. Therefore aggressive parties are turning from massively exploiting natural resources, to massively exploiting informational resources.


You only have look ‘south’ to see a similar oily attitude towards the locals being exhibited by another resource extractive industry.

Power is protected by boredom, by impenetrable jargon. Successful Creatives make images of reality that sell; images that are are not boring.

A very wealthy woman called Gertrude said to Pablo ” I don’t look like that” …Picasso replied “You will”