GBS: Scholarship Watch: New Student Note in the Hofstra Law Review

I’ve previously remarked on the unusually high quality of the student scholarly work being done on the Google Books settlement. Many student law-review notes follow a distressingly bland format: problem statement, discussion of relevant law, synopsis of case, critique of court’s legal reasoning, proposal for change, pro forma conclusion. Like eight-legged essays, they take a complex legal issue and bludgeon it into submission.

For whatever reason, most student work on the settlement, however, has avoided this trap. Student authors, particularly on antitrust, have made novel and interesting arguments that illuminate the issues raised by the settlement. They may not always be right in every particular, but really, who in the academy is?

The latest addition to this tradition is Alessandra Glorioso’s student note in the Hofstra Law Review, Google Books: An Orphan Works Solution?. It’s unusually wide-ranging for a note, offering opinions on fair use, essential facilities doctrine, the most-favored-nation clause, and solutions to the orphan works problem. I doubt that anyone will agree with everything in it, but everyone will learn something from it.

It is great to see that the GBS provides so much fodder for student and scholar comment in the law journals, but will Judge Chin ever issue a ruling so the world of authors, publishers and readers can see where they stand, and try to move forward in reaching fair and just arrangements for e-publishing activities. The long delay in resolution is becoming another legal horror story, like that famously described a hundred years ago by Dickens, suggesting that our courts are just as disfunctional and gridlocked as the Senate, and the rest of our governmental institutions. The GBS crisis is not just an academic exercise, but involves real life, authors’ labors, hopes and dreams as well as the proper and lawful avenues for the wide dissemination of ideas and the advance of human thought. Time will tell if a single federal judge (and his clerks) is up to the task of sorting out the GBS, but, alas, the delay itself is harmful to all involved.


GBS involves self referential paradox = infinity loop= frozen screen. Only a higher level can hit the reboot button.

Ever read Bulgakov’s “Black snow”/

Google has teamed up with some of the world’s most prestigious libraries… Libraries participating in the Google Library Project include Harvard, Princeton, Stanford, Columbia, and Oxford, the New York Public Library, the Library of Congress, and dozens of libraries outside the United States. (Pages 981-982)

As Pamela Samuelson has noted(1) not all of Google’s Library Partners supply Google with in-copyright works, but reading the above gives the impression that they do. When I contacted the New York Public Library in the spring of 2009 to see if they had any intention of digitizing their copy of my book, they replied that they only supplied Google with public domain works, and would never digitize my work (i.e. a work in-copyright) without my permission. The Library of Congress also assured me that they would never digitize their copy of my book without my permission.

Alessandra Glorioso has much hope for a “Books Rights Registry.” What I have never been able to understand is why Google, the undisputed champion of search, did not establish such an organization before it went whole hog with the digitization of copyrighted works. If a Rights Registry is going to be such a success after the fact, why should it not be before the fact? Perhaps those contemplating an American national digital library may see that establishing a Rights Registry is the best way to get the horse before the cart.

(1)The Google Book Settlement as Copyright Reform

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

James, I am puzzled by your praise of this article, even though I agree with her general conclusions that the settlement could be beneficial.

The article fails in three major areas. First, I found her fair use analysis to be confused. She seems to be giving a fair use analysis of the Amended Settlement, whereas fair use isn’t at issue in the settlement. The only fair use question is whether Google’s initial plan to index the contents of books was a fair use.

Second, in her discussion of the monopoly issues, she implies that the Book Rights Registry will be able to license the use of Google’s digital copies of books. My reading of the two settlements is that this is expressly forbidden; the scans remain the property of Google. All the Registry can do is potentially license others to digitize and sell works, but it has no control over Google’s scans.

Third, her orphan works analysis is sloppy. While she gives the correct definition of orphan works, she then slips into the common habit of referring to “in-copyright but out-of-print” books as the equivalent of orphans. Some of them are, but not all.

There are other problems, some due in part because she seems to confuse Google’s initial indexing program with the joint publishing agreement proposed by the plaintiffs in the settlement. For example, she seems to believe that the Settlement allows the downloading of books, when in reality that is an option that Google and the Registry can discuss at a later date. And at the top of p. 992, she writes about the settlement, “Google’s ability to use books whose copyright owners are not included in the settlement stems from its unique and controversial “opt-out” system.” I don’t see that the settlement allows Google to use any books that are not included in the settlement (other than public domain works), so this makes no sense to me.

I agree that there is good student work being done on GBS, but this is one of the weakest efforts that I have seen. What am I missing?

Google’s ability to use books whose copyright owners are not included in the settlement stems from its unique and controversial “opt-out” system.” I don’t see that the settlement allows Google to use any books that are not included in the settlement

Mr Hirtle

to paraphrase “Uber-distinguished legal scholar Richard Epstein”

Exactly what is not included ? And Exactly what the settlement is, is still the question.

And the monoply that is most concerning is the monopoly over representation.

Peter, I agree that there are confusions in the paper. Still, I learned from reading it, and it helped me appreciate more fully some issues raised by the settlement. I would not want it to be the first or only article one reads on the settlement, but the true settlement junkies (like you and I) can appreciate, say, the essential facilites discussion while not being misled by the slippage in the fair use analysis.


she seems to believe that the Settlement allows the downloading of books, when in reality that is an option that Google and the Registry can discuss at a later date.

Dos it or not?

John, Peter is correct in his description of the settlement.


If the settlement is approved, Google will sell access to electronic versions of scanned books.


Opt-out looks a lot like the scam where ‘offers’ are disguised as invoices.

Jerome, perhaps a law suite brought on by one of the countries excluded from the settlement would speed things along?

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

l-a-w-s-u-i-t — lawsuit

There are a number of rivals to google books , France has Galicia for example. Google will not have a monopoly. Once something is digitized a exponential spread of mirror copies throughout the web is pretty inevitable. Hacking is a sort of neural net, tens of millions of individuals trying different approaches and passing on the ones that work will always be a step ahead of any central authority. Trying to stop private copying and distribution is Canute like, it wont work; It will cost more than it could ever pay.

A ‘race to the bottom’ seems possible, can selling digital copies of existing books be a paying proposition? Perhaps GBS is obsolete before it even got of the runway?

Here is the latest info I could find on Google Editions (after a fairly quick search):

Book industry wholesalers, such as Ingram and Baker & Taylor (the two largest in the US), only sell to retailers and libraries, usually at about a 40% discount from list price. The retailers then sell those books to consumers at full list price, or at whatever discount or markup from the list price they choose. Thus, a traditional wholesaler does not cut into full-price sales by either the retailers they sell to, or the publishers who sell to the wholesaler (assuming the publisher sells direct to consumers; some do, some don’t). If Google sells books direct to consumers they will be competing with their own trading partners. They will probably also be getting larger profits from sales to consumers than sales to retailers.

It is unclear from this article whether Google plans to sell the so-called orphan works in their new bookstore, or the new books they scanned whose copyright holders opted out of the Settlement.

Neither publishers nor authors really need Google Editions. Anyone can sell an e-book through Amazon’s Kindle, Barnes & Noble’s Nook, and other formats and venues. Absolutely any publisher can sell an e-book, print book, and/or audio book to Amazon and/or Barnes & Noble online, either via a direct contract with the retailer or through a wholesaler. (They accept pretty much any and every book, though Amazon did recently pull some kiddy porn from their list after protests.) Ingram sells e-books and audio books (as well as an enormous number of print books) and provides a print-on-demand service. B & T definitely sells print books and probably sells e-books, but I don’t sell through them any more so I’m not positive. Print-on-demand is available through a number of vanity/subsidy press publishers, but also (cheaper and just as good) from various companies that do straightforward printing.

There are a great many other book distributors and retailers on the web, also publisher websites where the publisher does direct sales. Most of them appear in any search engine search, and are also listed with mega-book-search services such as

The current, opt-in Google Book Search is no sales miracle. There are so many other places to look for books that customers do not use it by default—Amazon is much more popular. Note, by the way, Amazon’s Search Inside feature contains the whole book, BUT it is fully opt-in and opting in is by no means required in a contract with them.

Why the ABA thinks they really need Google is beyond me, unless they figured Google would just sell copyrighted books without permission anyway.