The Laboratorium
September 2010

This is an archive page. What you are looking at was posted sometime between 2000 and 2014. For more recent material, see the main blog at

GBS: Update to Eric Fraser on Antitrust

Eric Fraser’s paper on the antitrust issues raised by the settlement, Antitrust and the Google Books Settlement:
The Problem of Simultaneity
, has gone from draft to published. It appears in the most recent issue of the Stanford Technology Law Review, and has been updated to address the amended settlement. Here is the abstract of the published version:

Google Books represents the latest attempt at the centuries-old goal to build a universal library. In 2004, Google started scanning books from libraries around the world. Although it made copyright licensing agreements with some publishers, it did not obtain permission from each rightsholder before scanning, indexing, and displaying portions of books from the stacks of libraries. Unsurprisingly, authors and publishers sued for copyright violations. Google settled the class action lawsuit in a sweeping agreement that has raised suspicion from librarians, users, and the government. In this paper, I analyze the antitrust and competition issues in the original and amended settlement agreements. I find that the simultaneous aspects of agreements and pricing pose serious antitrust problems. The settlement effectively gives Google simultaneous agreements with virtually all the rightsholders to in-copyright American books. The original agreement also would have required Google to set prices for books simultaneously. In a competitive market, both agreements and pricing would occur independently. Under current law, however, no potential competitor can make agreements with the rightsholders to orphan works. The simultaneity, therefore, concentrates pricing power, leading to cartel pricing (a problem under § 1 of the Sherman Act) and monopolization (a § 2 problem).

GBS: Samuelson on the Settlement as Copyright Reform

Pamela Samuelson has posted an important new article draft, forthcoming in the Wisconsin Law Reivew, The Google Book Settlement as Copyright Reform. She looks at how copyright law creates problems the settlement tries to solve, and at the institutional issues created by using class-action procedure to fix those substantive problems. Samuelson’s long and distinguished history of engagement with copyright reform efforts (see also) gives this paper an unusually synoptic view of the copyright issues raised by the lawsuit and settlement. It effectively links the niceties of copyright doctrine to the deep questions of policy. This paper does for the copyright conversation what Einer Elhauge’s paper did for the antitrust one; agree or disagree, there is now a gold standard of sophisticated analysis.

Here is the abstract:

An intriguing way to view the proposed settlement of the copyright litigation over the Google Book Search (GBS) Project is as a mechanism through which to achieve copyright reform that Congress has not yet and may never be willing to do. The settlement would, in effect, give Google a compulsory license to commercialize millions of out-of-print books, including those that are “orphans” (that is, books whose rights holders cannot readily be located), establish a revenue-sharing arrangement as to these books, authorize the creation of an institutional subscription database that would be licensed to libraries and other entities, resolve disputes between authors and publishers over who owns copyrights in electronic versions of their books, provide a safe harbor for Google for any mistakes it might make in good faith as to whether books are in the public domain or in-copyright, and immunize libraries from secondary liability for providing books to Google for GBS, among other things.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

As Lawrence Solum would say, “Highly recommended.

Dr. Generative

I’m very happy to announce my latest scholarly release. Paul Ohm and I co-wrote a review of Jonathan Zittrain’s The Future of the Internet—And How to Stop It. We salute Zittrain’s theory of generativity, but offer some proposed friendly amendments to help sort through the tricky questions of how to spot and improve generativity in the wild.

Our title, Dr. Generative or: How I Learned to Stop Worrying and Love the iPhone, plays off of Zittrain’s central example, the iPhone. Zittrain’s book treats the iPhone as the harbinger of a dystopian, appliancized future. We’re not so sure, and our review uses the good—and bad—features of the iPhone to explore the complexities of Zittrain’s argument.

I had a lot of fun writing this. It was my first major collaboration, and I was surprised at how smoothly it went. Paul and I traded drafts frequently (we were at version 0.30 before we entered the Maryland Law Review’s editorial process) and I think our voices blend nicely in the final version. I hope you enjoy it, as well.

The citation is 69 Md. L. Rev. 910 (2010), and here’s the abstract:

In The Future of the Internet—And How to Stop It, Jonathan Zittrain argues that the Internet has succeeded because it is uniquely “generative”: individuals can use it in ways its creators never imagined. This Book Review uses the Apple II and the iPhone—the hero and the villain of the story as Zittrain tells it—to show both the strengths and the weaknesses of his argument. Descriptively and normatively, Zittrain has nailed it. Generativity elegantly combines prior theories into a succinct explanation of the technical characteristics that make the Internet what it is, and the book offers a strong argument that preserving generativity is vital for the sake of future innovation and creativity.

Unfortunately, while Zittrain calls for compromises to preserve generativity, he doesn’t provide a roadmap for distinguishing good compromises from bad. These tradeoffs, however, are essential. Restricting generativity in one place (for example, by building computers with fixed circuit boards rather than a tangle of reconfigurable wires) can massively enhance generativity overall (by making computers cheap and usable enough that everyone can tinker with their software). We use this observation to offer a series of corollaries to aid policymakers and system designers in optimizing generativity in the real world: Generativity is only one value among many, generativity is never absolute, and generativity is a systemic property, not a local one.

GBS: John Wilkin on Assessing Public Domain Status

This interview with Michigan librarian John Wilkin has some interesting details about how their CRMS system assesses which books are in the public domain, and touches on libraries’ digitization contracts with Google.

Oh, Amazon

Books > New & Used Textbooks > Science and Mathematics

Pride and Prejudice by Clare West, Jane Austen, Tricia Hedge, and Jennifer Bassett

GBS: Chin Still on the Case

Last week, Google and the visual artists agreed to a fifth extension of time for Google to file its reply in the ASMP lawsuit. On Wednesday, Judge Chin, “sitting by designation,” signed the order. Presumably, that means he is still sitting on the settlement and still plans to issue a decision on it at some future date. Presumably, it also means that the parties in the ASMP lawsuit are all waiting for Chin’s ruling on the settlement before they move the ASMP case forward. None of this is news, but sometimes no news is news.

Incompatability in Action

The New York Times reports today on an Obama administration plan to require wiretapping backdoors in all encrypted communications. Here is the closing quotation, from Valerie E. Caproni, who is General Counsel at the FBI:

They [communications providers] can promise strong encryption. They just need to figure out how they can provide us plain text.

Is it too much to ask that government officials make more of an effort to hide the contradictions in their bad ideas?

A Parable of Horribles

There was a three-year boot camp of particular awfulness. Most new recruits were miserable, but at least, they were constantly told, the brutality was necessary for making soldiers out of them. Over time, however, the drill sergeants gradually decided that shouting wasn’t the best training method. The country needed soldiers who could make good decisions under pressure, not just snap perfectly to attention whenever spoken to. So they started changing what they told the recruits to do, and how they said it.

But then a strange thing happened. The recruits still prided themselves on the precision of their salutes. They formed their own “drill groups” to run repeatedly through the parade-ground maneuvers that were taught in the first few months of the three-year program. And strangest of all, the same soldiers-to-be who were competing fiercely with each other to run the obstacle course the most times in the rain objected to being put in situations that resembled (however imperfectly) actual combat. “What are our orders, sir?” they asked, time and time again, even when the premise of the exercise was that they were cut off behind enemy lines.

Perhaps law school is a bit of a bottom-up boot camp?

Comment Policy

Please take note. There is hereby established a Laboratorium comment policy.

The Mufti of Constantinople

Lewis Hyde explains that in 1739, the established churches in Philadelphia denied their pulpits to the visiting Methodist minister George Whitefield. Benjamin Franklin and others took up a collection to build a public lecture hall that would be, in Franklin’s words,

expressly for the Use of any Preacher of any religious Persuasion who might desire to say something to the People of Philadelphia, the Design in building not being to accommodate any particular Sect, but the Inhabitants in general, so that even if the Mufti of Constantinople were to send a Missionary to preach Mahometanism to us, he would find a Pulpit at his Service.

Bring Them Home: Three Versions

Pete Seeger:

Bruce Springsteen:

Tao Rodriguez-Seeger: