The Earth is Not Flat: The Public Interest and the Google Book Search Settlement: A Reply to Grimmelmann

July 22, 2009
Guest Post

By David Balto, Senior Fellow, Center for American Progress (i)

Editor's Note: This substantial piece is a response to The Google Book Search Settlement: Ends, Means, and the Future of Books, an ACS Issue Brief by Professor James Grimmelmann. The complete reply is available below the fold. 

In 2004, Google began working with large research libraries to digitize their book collections and to make the content searchable online. Not long after the project was announced, a collection of authors and publishers sued Google for copyright infringement. After almost three years of negotiations, Google and the plaintiffs announced in October 2008 that they had agreed to a proposed settlement.

While some commentators have lauded the settlement, others have vociferously claimed that it poses competitive concerns and does not promote the public interest. As an advocate for consumer interests and a former antitrust enforcer, I took great interest in this debate early on and started to study the settlement. Over the last few months, I have learned much about Google Book Search, the ensuing litigation, the settlement, and the settlement's competitive implications. In doing so, I have come to the firm conclusion that the competition criticisms of the settlement are unfounded. The settlement is good for consumers and should be approved.

To a large extent I think the debate over the settlement misses the point. What Google has achieved the in truly remarkable, and potentially transforms the availability of vast amounts of knowledge - much akin to the development of search. Google has created a universally accessible, searchable, digital library of unprecedented dimensions. Although this is not a discovery of a "new world" akin to Christopher Columbus' achievement, it has the potential of substantially increasing access to a phenomenal amount of information for millions of consumers. The critics of this endeavor need to learn the lesson of Columbus' critics: the world is not flat.

The achievements of Google's project are remarkable. When Google started the project, book scanning technology was in its relative infancy and cost-prohibitive for operations at scale; the company thus had to develop its own scanning technology to move forward with the project (ii). At the same time, Google had to negotiate numerous agreements with libraries to gain access to their books and had to secure other rights directly from publishers and authors (iii). An additional deterrent was the great uncertainty surrounding the ownership of digital book rights. Indeed, it became abundantly clear that Google had undertaken considerable economic risk when its Book Search program became the subject of a class action lawsuit.
Antitrust appropriately recognizes the need to reward such risk taking endeavors. For decades the courts and antitrust enforcers have recognized the need not to intervene against innovations and new products developed based on superior skill, foresight and ingenuity. The creation of this new online library is precisely that, a risky endeavor that benefits society and consumers.

In settling the litigation, the publishers, authors, and Google have pursued a sound and necessary approach to resolving a number of rights sharing problems that, until now, have posed seemingly insurmountable hurdles to making books digitally available. For example, by creating a nonprofit organization, the Book Rights Registry ("BRR" or "Registry"), to represent the interests of authors and publishers and to locate rightsholders who have been separated from their works, the settlement will significantly enhance the ability of subsequent entities to commence book scanning initiatives. As such, the settlement should be viewed in light of what it provides for the general public- increased access to the world's written cultural heritage, particularly books that have long been out of print. The settlement is, in other words, output-enhancing and procompetitive.
In this article, I first describe the settlement's consumer benefits, and then examine the impact of the settlement on entry barriers. I explain how, rather than increasing entry barriers the settlement significantly decreases such barriers for other entities. I then focus on the criticisms posed by Professor James Grimmelmann (iv), and explain how the settlement is ultimately procompetitive and beneficial to the market. Like "the earth is flat" critics of Columbus' journey, these critics lack the vision to see the truly beneficial aspects of the settlement.

1. The Settlement Will Create Significant Consumer Benefits

The Library of Alexandria, which Grimmelmann mentions in his articles, was one of the largest libraries in the ancient world. Although it remains unclear to this day how the library was destroyed, the leading theory is that Julius Caesar set a fire that unintentionally burned the library down in 48 BC during the Alexandrian War. The ancient texts contained within the library were destroyed, and the knowledge contained within the books was lost forever.

This historical incident is noteworthy for two reasons: first, on a practical level, the creation of digital copies of the world's books ensures that this disaster of the ancient world will not be repeated in modern times. Indeed, it would be borderline negligent not to use the electronic advancements of our generation to preserve the history and knowledge contained in books that have typically existed only on flimsy decaying paper.

Second, despite the fact that there has been no fire or other calamity, a substantial percentage of the books in the United States (which Grimmelmann estimates is likely to be more than half of all books) (v) have been largely unavailable to the public, which amounts to a tragedy no less significant than the destruction of the Library of Alexandria. These are out-of-print books, which can be found in some public libraries and occasionally purchased second-hand, but which are otherwise inaccessible.

There are a number of complications surrounding these books that have prevented them from being made more accessible. For many works, it is unclear whether they have fallen into the public domain because the rightsholder did not renew their copyright, as required by prior iterations of the Copyright Act. For some works, there is uncertainty as to who presently owns the rights to a book because the rights somehow got lost or otherwise disappeared over time. There is also ambiguity as to whether the author or the publisher owns the digital rights to hundreds of thousands of books. The combined impact of the varying shades of rights uncertainty has been to create gridlock, (vi) which has prevented people from effectively accessing, and benefiting from, the knowledge encapsulated within an enormous number of books.
By settling their litigation, Google and the plaintiffs have ended the impasse. The settlement unleashes greater access to books, particularly to out-of-print books, which increases output in the marketplace of ideas (vii). Moreover, the settlement will serve as an equalizing force across socioeconomic, geographic and linguistic barriers. Scholars and historians at the smallest schools in remote corners of this country will obtain the same access to knowledge as those at large well funded universities in our biggest cities. Citizens in poor communities will likewise have similar access to knowledge as those in affluent communities. And language barriers will be diminished under the settlement as Google's translation technology enables digital works in one language to be instantly translated into others (viii).

In addition to tearing down socio-economic and linguistic access barriers, the settlement will provide considerable benefits to those who are blind or otherwise print-disabled. Under the terms of the settlement, Google can provide books to "users with print disabilities so that such users have a substantially similar user experience as users without print disabilities" (ix). The National Federation of the Blind, the nation's leading advocate for access to information by the blind, has stated that the settlement will have "a profound and positive impact on the ability of blind people to access the printed word" (x).

The settlement will also provide researchers with the ability to analyze books and language in ways that were previously impossible. They will, for example, be able to search the entire digital library corpus to compare language and cultural development, and to track literary developments across countries. The potential to unlock knowledge is seemingly unlimited.

Universities around the country have overwhelmingly acknowledged these benefits. According to Michael Keller, Stanford's university librarian and publisher of the Stanford University Press, "[t]he settlement promises to change profoundly the level of access that may be afforded to the printed cultural record, so much of which is presently available to those who are able to visit one of the world's great libraries." Paul Courant, the Dean of Libraries at the University of Michigan, has likewise observed that Google Book Search will provide:

ubiquitous online access to a collection unparalleled in size and scope, preservation of the scholarly and cultural record embodied in the collections of great research libraries, new lines of research, and greatly expanded access to the world's printed work for persons with print disabilities (xii).

For all these reasons, it is difficult to exaggerate the benefits that consumers will gain from the settlement - and important not to overlook the fact that these vast benefits will disappear if the settlement's detractors succeed in derailing its approval. Even some of the settlement's most vocal detractors, including Grimmelmann, acknowledge these fundamental facts (xiii).

2. The Settlement Substantially Decreases Entry Barriers

Grimmelmann argues that the settlement will create various significant, if not insurmountable, barriers to entry that will prevent other potential competitors from competing in book scanning and online book sales. He could not be more mistaken.

There is no doubt that book scanning is a difficult space to enter. Companies such as Microsoft and Yahoo have entered, seemingly determined that it would not be profitable, and exited (xiv). Despite the costs and challenges, however, there are a number of entities that have entered book scanning and sustained their efforts (xv). As Grimmelmann acknowledges, the non-profit Open Content Alliance currently scans public domain works, and Amazon.com has the institutional capacity to make books available digitally on a "huge scale" (xvi).

The capability of individual firms to enter is not, however, the question. The critical inquiry is whether the settlement increases or decreases entry barriers. The answer to that question is clear: there is no respect in which the settlement increases entry barriers. In fact, like Columbus' explorations, it will actually decrease entry barriers, by expanding the public domain and resolving uncertainty on rights. Moreover, the settlement does not create any additional obstacles to entry.

a. The Settlement Expands the Public Domain

Google has scanned approximately seven million works (xvii), one million of which come from the company's partner program (xviii) and another million of which were published prior to 1923 and therefore are clearly in the public domain (xix). The copyright status of segments of the remaining five million works are unclear. Many of the books will actually belong in the public domain because the rights owners did not renew their copyrights, as required under previous iterations of the Copyright Act. As Grimmelmann notes, more than 85% of works published between 1923 and 1978 were not renewed, as required by the Copyright Act, and therefore fell into the public domain (xx).

The catch here, because the Copyright Office did not keep effective records during this period, is identifying which works were not renewed. Carnegie Mellon, Project Gutenberg, the Distributed Proofreaders, and Google have, however, combined to scan, compile, correct, and disseminate these records (xxi). And Google is now using the records to determine the copyright status of books under the settlement.

Notably, the Copyright Office examined the feasibility of scanning these records and placing them online in 2006. They expressed reluctance to commit to such a project, however, because it would "involve a significant expenditure of resources" (xxii) as "preliminary figures estimated the costs to be about $35 million" (xxiii). Fortunately, however, government inaction has not impeded progress because Google and others have filled the void - without the expenditure of public funds.

Each time that Google determines a book belongs in the public domain, consumers benefit by being able to download an entire PDF version of the text. Potential book scanning entrants benefit by having fewer books with uncertain rights - and can thereby avoid incurring expenses that Google had to incur to navigate these uncertain rights. By facilitating the clarification of the public domain status of potentially millions of works, the settlement thus significantly expands access and facilitates entry.

b. The Settlement Will Lead to the Resolution of Uncertain Digital Rights

Another significant source of uncertainty surrounding the status of many out-of-print works is the ownership of the digital rights associated with particular books. Up until the 1990s, publishing agreements typically did not allocate digital rights to books, and publishers and authors have disagreed about who should retain these rights by default. The resulting standoff has harmed authors and publishers alike by denying them the possibility of gaining revenue from the sale of digital works. Consumers are likewise harmed by the loss of an effective option for accessing these publications. The settlement resolves this problem by creating a procedure for publishers and authors to determine who should own these digital rights.

In addition, while publishers or authors may not have had any incentive to assert their digital rights in the past because their books were out of print or otherwise no longer profitable, the settlement creates an incentive for authors or publishers to come forward to assert their rights. Specifically, individuals and institutions can purchase access to out-of-print works that are still under copyright and the revenues that will be derived from these sales, combined with various inclusion fees described in the settlement, create financial incentives for owners of out-of-print books to claim them.

To ensure that copyright holders worldwide are aware of these financial incentives, the settlement has established the most comprehensive class-action notification program ever. Specifically, Google has funded a large direct-mail effort, created a dedicated Web site about the settlement in 36 languages, and spent about $7 million on advertising in newspapers, magazines, and even poetry journals, with at least one ad in each country (xxiv).

By creating an entity to resolve disputed digital rights claims between authors and publishers, providing financial incentives for rights holders to claim their works, and funding the world's largest class-action notification program, the settlement generates substantial pro-competitive benefits and facilitates entry.

c. The ‘Orphanage' Post-Settlement

Grimmelmann alleges that the settlement will provide Google with "exclusive control" or a "monopoly" over "orphan works," which are works for which the current rightsholder is unknown. These claims lack economic substance.

First, Google will affirmatively not obtain a monopoly over orphan works because the settlement does nothing to make entry more difficult for a second entrant. Indeed, any company that chooses to begin scanning orphan works will face fewer obstacles - due to the settlement - than Google has confronted. In particular, by increasing the size of the public domain, clarifying uncertain rights, and addressing innumerable complex legal issues, the settlement simultaneously provides a map and blazes trails through previously unchartered territories than others will be able to use for their own explorations.

Second, we should remember that these works were orphaned because the rightsholders failed to keep track of their interests in the books. Thus, while it is obviously exciting that Google's scanning efforts could result in the (re)discovery of works of genius that have sat anonymously in the stacks of our nation's research libraries, we should also not forget that the true remaining orphans probably had indifferent parents and are likely of little value. As Roy Blount, President of the Authors Guild, noted, orphan works are books that "have been deemed unfit for continued commerce by traditional print publishers" (xxv).

Third, the number of true orphan works that will exist post-settlement warrants closer scrutiny. Contrary to the claims of Grimmelmann and others, the number of orphan works will be substantially reduced. Specifically, we know that:

• Over 85% of copyrighted works prior to 1964 were not renewed and belong in the public domain, which could amount to as many as 1.5 million works (xxvi); • The settlement creates financial incentives for copyright owners to come forward and claim works, which will facilitate rights clarification (xxvii); and • The Registry is obliged to locate authors under the settlement and, according to Roy Blount, studies on efforts to locate the rightsholder of out-of-print work have typically resulted in an 80-85% success rate (xxviii).

It is thus overwhelmingly apparent that the combined effect of these rights clarification efforts and financial incentives will be to clarify the copyright status of hundreds of thousands, if not millions of works, which will be an enormous improvement over the status quo.

Studies on the number of true orphan works in the United State have, moreover, found few fewer true orphans than critics of the settlement allege. Peter Hirtle, for example, concluded that there is a total of 12 million out-of-print works in the United States and that approximately 1.4 million could be true orphans (xxix). If Google has scanned about 5 million out-of-print but in-copyright works, this means its library might include about 580,000 orphan works.

According to Brewster Kahle (xx), the head of the Open Content Alliance, it costs Google about $10 to scan a book and costs the Internet Archive about $30 to scan a book with "superior quality" (xxxi). It thus would cost a rival to Google somewhere between $5.8 million and $17.4 million to scan the same body of orphan works-an expensive undertaking to be sure, but one that is certainly achievable. As such, it is entirely disingenuous to claim that the settlement increases entry barriers surrounding orphan works or that Google will obtain a monopoly over them.

d. The Class Action Nature of the Settlement

Grimmelmann contends that the settlement is a good deal only for Google because "[i]n a post-settlement world ... potential competitors [in book scanning] face one insurmountable hurdle: copyright law" (xxxii). This is absurd because the copyright law is no different in the "post-settlement world" than in the "pre-settlement world." Indeed, when Google started scanning these books, it was sued for alleged copyright violations. And as the settlement shows, copyright law is a surmountable hurdle and indeed, the settlement itself is a valuable guide for others seeking to surmount it.

Nonetheless, Grimmelmann posits that any subsequent entrant would be "sued into oblivion by a mob of angry copyright owners" (xxxiii). Conversely, he expresses concern that the class action nature of the settlement will serve as a "remarkably effective barrier to entry" because a subsequent entrant would not be sued by a class action, similarly to Google (xxiv).

These concerns are unfounded once one understands the requirements for class certification, which are found under Rule 23 of the Federal Rules of Civil Procedure. Rule 23 states that a class should be certified if it comprises numerous plaintiffs with common questions of law or fact that share typical claims and defenses and have interests that can be fairly and adequately protected by class representatives. Defendants usually bitterly contest certification because it can mean the difference between exposure to individual damage claims that might amount to hundreds or thousands of dollars and the nationwide aggregation of these claims that might amount to millions or even billions of dollars in damages. In the book scanning context, however, a defendant will benefit from, and therefore support, class certification because it enables the defendant to simultaneously resolve all its copyright issues. Without delving into the elements of this provision, I will simply note that any lawyer who fails to persuade a court that a class should be certified - given the combination of a "mob of angry copyright owners," a supportive defendant, and the Authors Guild v. Google, Inc. class certification precedent - might want to consider an alternative career.

e. Innovation and Transparency

Grimmelmann also worries about Google becoming a "chokepoint" for book distribution, and about the possibility of Google censoring information it does not want distributed. The irony of this argument is overwhelming. The Internet has facilitated an unprecedented explosion in the ability of individuals to publish content - regardless of how bizarre, tasteless, or offensive it may be - to the world at large. And Google, as the world's most successful search engine, facilitates greater access to published content than any other entity in history. Period. The suggestion that the company thus might find the need to censor the content of books obtained from its library partners while simultaneously providing search results to users on virtually any topic is seemingly fanciful.

In addition, Grimmelmann's argument appears to be premised on a Brave New World, where all other forms of distribution and access to literature have apparently become extinct. Even if Google were to decide not to distribute certain works through its system, one must remember that this settlement is non-exclusive, thus allowing copyright holders to freely negotiate with any potential competitors, and that these "censored" works could still be published, sold, and distributed through all the means of publication that exist today.

Furthermore, the settlement provides a mechanism to address this specific concern - if Google wishes to remove a book from its search results (which Grimmelmann notes is the company's First Amendment right), then it must inform the BRR and provide the BRR with a digitized copy of that work. No such mechanism would exist if Google were to have successfully litigated its case against the authors and the publishers, so the settlement actually provides greater transparency than the ‘but for' world.

For all of the above reasons, there simply is no merit to the contention that the settlement will raise entry barriers for other would-be providers of digital books. The settlement will result in an expansion of the public domain and in the resolution of disputes over digital rights that are currently impeding our ability to access to vast quantities of books. And while issues inherent in our current system of copyright law, including orphaned works, will continue to impede access, none of these problems is increased by the settlement. In the post-settlement world, it will be in no way harder and in many ways easier for companies other than Google to provide digital access to books.

3. Remaining Antitrust Concerns are Equally Unfounded

Grimmelmann raises a number of specific antitrust concerns about the settlement, including that it facilitates price-fixing, confers monopoly power on the Registry, and contains an anticompetitive most-favored nation (MFN) provision (xxxv). Although these are legitimate points to examine, a careful examination of the settlement and the underlying economics shows they are unfounded.

a. The Settlement Does Not Facilitate Price-Fixing

Grimmelmann contends that the settlement will foster price-fixing among publishers and authors by creating an e-book program for consumer sales that gives copyright holders the option of allowing Google to determine sales prices. He points to a settlement provision that sets out twelve possible bin prices ranging from $1.99 to $29.99 and excitedly observes that "[s]urely the sophisticated companies with expert lawyers who drafted this settlement agreement wouldn't use it to set up a system of naked price-fixing ... " (xxxvi).

When these consumer sales provisions are examined, it becomes readily apparent that the settlement does not establish a cartel. These provisions actually provide two ways by which prices for consumer book sales can be determined: (1) the individual author or publisher can specify price; or (2) Google can select a price based on its own algorithm (xxxvii).

For algorithmic pricing, which is the focal point of Grimmelmann's concern, the settlement states that "Google may change the price of an individual Book over time" and the "distribution of Books ... among the Pricing Bins may change over time" (xxxviii). These provisions also prevent the Registry, authors, or publishers from interfering with Google's pricing freedom. The settlement does not, in other words, create "a system of fixed prices." Grimmelmann is plainly wrong.

Unfortunately, Grimmelmann creates an unnecessary spectre of concern. He notes that the "ninth circle of antitrust hell is reserved for price-fixers," (xxxix) but this is of little relevance to this situation. He is, of course, correct - collusion among competitors, which includes price-fixing, is a per se violation, and as such, no scrutiny is given to the actual harm or benefit produced by a per se violation (xl). Given this, it is rather surprising that Grimmelmann also proclaims that Section 1 of the Sherman Act is designed to prevent "[l]egal agreements that cartelize an entire industry" and that "[p]rice-fixing among two copyright owners is harmless" (xli). To the contrary, Section 1 of the Sherman Act is not designed simply to prevent the cartelization of an entire industry, but rather prohibits price-fixing between any companies regardless of how much of an industry they represent. Price-fixing between two copyright owners is neither harmless nor in the public interest.

Grimmelmann fails to recognize that the court and antitrust authorities have recognized that in many environments collective price setting can be pro-competitive when intellectual property is involved. The Supreme Court has noted that, especially when dealing with copyright issues, price-fixing is "not a question simply of determining whether two or more potential competitors have literally ‘fixed' a ‘price'" (xlii). The Supreme Court ruled in Broadcast Music Inc. v. CBS ("BMI") that music copyright clearinghouses were not violating the antitrust laws per se, and in doing so, it expounded upon the purpose of copyright in general that aptly applies here:

Although the copyright laws confer no rights on copyright owners to fix prices among themselves or otherwise to violate the antitrust laws, we would not expect that any market arrangements reasonably necessary to effectuate the rights that are granted would be deemed a per se violation of the Sherman Act. Otherwise, the commerce anticipated by the Copyright Act and protected against restraint by the Sherman Act would not exist at all or would exist only as a pale reminder of what Congress envisioned. (xliii)

As in BMI, the Google settlement will not facilitate a per se cartel violation, but instead will accomplish "the integration of sales, monitoring, and enforcement against unauthorized copyright use" (xliv). This integrated facilitation of copyright enforcement and market enhancement in this manner is, as Grimmelmann himself noted, unabashedly procompetitive and beneficial.

b. The Registry Is Not a Potential Monopolist

Grimmelmann contends that the "Registry is also a potentially dangerous monopoly" because it "will speak on behalf of an entire industry" (xlv). At the same time, he argues that the "best way to make the Registry work well" is to expand its scope and powers (xlvi). This is a perplexing contradiction. No economist or antitrust lawyer would recommend expanding the powers of an entity to eliminate the monopolization concerns it poses. If the Registry were a "dangerous monopoly," it would be appropriate to curtail its powers. Period.

But his competitive concerns are simply misplaced. The Registry is no different than other collective rights management organizations that have been acknowledged as procompetitive under the antitrust laws. For example, the Department of Justice ("DOJ") previously examined a licensing program proposed by the Copyright Clearance Center, Inc. ("CCC"), a non-profit organization created by authors, publishers, and users of copyrighted material to facilitate copyright licensing and clearance (xlvii). The DOJ concluded that CCC's licensing arrangement, which authorizes users to make unlimited copies of any work in CCC's library for an annual fee, did not raise competitive issues in part because the copyright holders that are CCC members may continue to negotiate separate licensing arrangements with users and competing firms (xlviii). As part of its analysis, the DOJ also noted the procompetitive benefits of the blanket licensing agreement, such as encouraging use of copyrighted works among a wider range of users (xlix).

Similar to the CCC, the Registry will offer blanket licenses to digital book users on a nonexclusive basis. This is a key provision that Grimmelmann notes, but seemingly ignores its full implications (l). Non-exclusivity means that, as with the CCC, authors and publishers will have the ability to negotiate with the Registry or separately with digital book providers. And because authors and publishers will have the ability to negotiate with other entities, the DOJ's conclusion regarding this provision in the settlement should be the same as the DOJ's conclusion with respect to the CCC-that absent exclusivity, it is unlikely that the Registry could impose unreasonable license fees or otherwise restrict the availability of electronic books.

Just because the Registry is important does not mean it is a monopoly, but ultimately will provide significant benefits to consumers. Under the Settlement, the Registry will own and maintain a rights information database for books and their authors and publishers, locate rights holders, distribute payments from Google to rights owners, and assist in the resolution of disputes between those claiming to hold digital rights (li). The Registry thus has the potential to significantly increase the amount of information and the number of books available in digital form to consumers.

c. The Most-Favored Nation Clause Is Procompetitive

Grimmelmann also raises concerns about the settlement's so-called Most-Favored Nation clause ("MFN"), claiming that it is "[t]he most pressing problem" because it "explicitly guarantees Google a privileged position" (lii). I have written extensively and testified about the competitive implications of MFNs (liii). These clauses can promote consumer welfare by permitting first movers to recoup their investments in innovation. Conversely, MFNs can impede entry and adversely impact competition. The MFN clause in the settlement falls into the former category.

First, Grimmelmann's MFN analysis fails to give any consideration to Google's incentives to continue scanning books. As noted above, every other company that has attempted entry in this space has failed. We should thus be careful before making flippant arguments that would undermine Google's incentives to scan because the last thing that we, as consumers, want is to impede Google's scanning efforts.

Second, the MFN only applies in limited circumstances. Specifically, provision 3.8(a) states that the Registry will not license to third parties on terms that "disfavor or disadvantage Google" when such authorizations include rights granted from a "significant portion" of unclaimed works (liv). In other words, the Registry can license all the claimed works and some of the unclaimed works to third parties on terms that disfavor or disadvantage Google. The remainder of the works can moreover be licensed on identical terms to Google. It seems unlikely the MFN will hinder competition.

Conclusion

The universally accessible, searchable, digital library that will be realized by the Google Book Search settlement will provide unprecedented benefits to consumers worldwide. The settlement is an efficient and socially beneficial solution to the significant rights uncertainty that currently surrounds many books. Many of the leading critics of the settlement, such as James Grimmelmann, have failed to appreciate these procompetitive benefits while also dramatically overstating the antitrust risks. Like the critics of Columbus' journey their speculation of concern is unfounded: the earth is not flat. The Google Book Settlement should unquestionably be approved.

Notes

i. Mr. Balto is an antitrust lawyer in Washington and a Senior Fellow at the Center for American Progress. In the Clinton Administration he was the Policy Director of the Bureau of Competition of the Federal Trade Commission.
ii. Maureen Clements, The Secret Of Google's Book Scanning Machine Revealed, National Public Radio (April 30, 2009), available at www.npr.org/blogs/library/2009/04/the_granting_of_patent_7508978.html.
iii. In December 2004, Google entered agreements with the libraries at Harvard University, the University of Michigan, Stanford University, Oxford University, and the New York Public Library to scan parts of their collections of books and make the contents searchable online. Google received access to the collections, while the libraries received an electronic copy of the books that they provided to Google. Press Release, Google Checks Out Library Books, Dec. 14, 2004, available at www.google.com/press/pressrel/print_library.html.
iv. James Grimmelmann, The Google Book Search Settlement: Ends, Means, and the Future of Books, American Constitution Society (April 2009), available at http://www.acslaw.org/files/Grimmelmann%20Issue%20Brief.pdf [hereinafter Ends, Means, and the Future of Books]; James Grimmelmann, How to Fix the Google Book Search Settlement, Journal of Internet Law at 1 (April 2009), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1022&context=james_grimmelmann [hereinafter How to Fix the Google Book Search Settlement].
v. Ends, Means, and the Future of Books, supra note 3 at 8.
vi. See generally, Michael Heller, The Gridlock Economy, New York, NY (2008).
vii. James Gleick, How to Publish Without Perishing, N.Y. Times (Nov. 29, 2008), available at, http://www.nytimes.com/2008/11/30/opinion/30gleick.html ("As a way through the impasse, the authors persuaded Google to do more than just scan the books for purposes of searching, but go further, by bringing them back to commercial life. Under the agreement these millions of out-of-print books return from limbo.... This means a new beginning - a vast trove of books restored to the marketplace.").
viii. See, e.g., CNET News, Google's Digital-Book Future Hangs in the Balance, http://news.cnet.com/8301-1023_3-10262203-93.html (June 15, 2009) (noting that Google "increasingly sophisticated translation technology ... could bulldoze literary language barriers").
ix. Press Release, Google Settlement with Authors, Publishers, eSight Community News, Nov. 23, 2008, available at www.tabinc.org/blog/archives/2008/11/google_settleme.html.
x. Id.
xi. Press Release, Major Universities See Promise in Google Book Search Settlement, University of Michigan News Service, Oct. 28, 2008, available at www.ns.umich.edu/htdocs/releases/story.php?id=6807.
xii. Paul Courant, Other Voices: Google Agreement Will Extend U-M Libraries' Accessibility, Mlive.com (June 24, 2009), available at www.mlive.com/opinion/ann-arbor/index.ssf/2009/06/other_voices_google _agreement.html.
xiii. See How to Fix the Google Book Search Settlement, supra note 3 at 12 ("Everyone is better off than they would be in a world without Google Book Search . . . .").
xiv. Ends, Means, and the Future of Books, supra note 3 at 10.
xv. See, e.g., Press Release, Emory Partnership Breaks New Ground in Print-On-Demand Books, June 6, 2007, available at www.emory.edu/news/Releases/KirtasPartnership1181162558.html (announcing partnership with Kirtas Technologies, Inc., a maker of digital scanning technology to apply automated scanning technology to thousands of rare, out-of-print books in its research collections).
xvi. Ends, Means, and the Future of Books, supra note 3 at 10.
xvii. Juan Carlos Perez, In Google Book Settlement Business Trumps Ideals, IDG News Service (Oct. 30, 2008), available at www.pcworld.com/businesscenter/article/153085/in_google_book_settlement_business_trumps_ideals.html.
xviii. Id.
xix. Id.
xx. Ends, Means, and the Future of Books, supra note 3 at 8.
xxi. Google Book Search Blog, U.S. Copyright Renewal Records Available for Download, http://booksearch.blogspot.com/2008/06/us-copyright-renewal-records-available.html.
xxii. United States Copyright Office, Report on Orphan Works, Jan. 2006, 29-30 n.46, available at www.copyright.gov/orphan/orphan-report.pdf.
xxiii. Id.
xxiv. Noam Cohen, A Google Search of a Distinctly Retro Kind, N.Y. Times (March 3, 2009), available at www.nytimes.com/2009/03/04/books/04google.html (noting that "200 advertisements have run in more than 70 languages: in highbrow periodicals like The New York Review of Books and The Poetry Review in Britain; in general-interest publications like Parade and USA Today; in obscure foreign trade journals like China Copyright and Svensk Bokhandel; and in newspapers in places like Fiji, Greenland, the Falkland Islands, and the Polynesian island of Niue (the name is roughly translated as Behold the Coconut!), which has one newspaper.").
xxv. See, e.g., Roy Blount, Let's Not Lose Our Heads Over a "Monopoly" of Orphans, The Authors Guild (June 24, 2009), available at www.authorsguild.org/advocacy/articles/roy-blount-on-google-orphans.html.
xxvi. Ends, Means, and the Future of Books, supra note 3 at 8; Peter Hirtle, Why the Google Books Settlement is Better Than Orphan Works Legislation, LawLibrary Blog (May 27, 2009), available at http://blog.librarylaw.com/librarylaw/2009/05/why-the-google-books-settlement-is-better-than-orphan-works-legislation.html.
xxvii. The minimum inclusion fee under the settlement is, for example, $60. Settlement Agreement, Authors Guild, Inc. v.Google, Inc., Case No. CV 8136-JES § 2.1(b) [hereinafter Settlement Agreement].
xxviii. Blount, supra note xxv; see also Hirtle, supra note xxvi, (citing Carneige Mellon University study that located 79% of rights holders).
xxix. Hirtle, supra note xxvi.
xxx. Along with James Grimmelmann, Brewster Kahle has been one of the most vocal - and illogical - critics of the settlement. In a single editorial, Brewster argued that the settlement should not be approved because Google would gain a monopoly over millions of orphan works yet also stated "[t]here are alternatives" to Google's scanning efforts and that entry at scale is "not that expensive." Brewster Kahle, A Book Grab By Google, Washington Post (May 19, 2009), available at www.washingtonpost.com/wp-dyn/content /article/2009/05/18/AR2009051802637.html. Kahle does not appear to appreciate that monopolies do not arise where alternatives exist and entry is viable.
xxxi. Brewster Kahle, Economics of Book Digitization, available at www.opencontentalliance.org/2009/03/22/economics-of-book-digitization.
xxxii. Ends, Means, and the Future of Books, supra note 3 at 10.
xxxiii. Id.
xxxiv. Id. at 11.
xxxv. E.g., id. at 1 (Google developing a "dominant platform with control over a huge catalog of books that no one else has access to").
xxxvi. Id. at 5; Settlement Agreement, § 4.2.
xxxvii. Besides the pricing options provided in the settlement, authors and publishers can also opt-out of the settlement and negotiate sales prices and other access provisions directly with Google. When seen in this broader context, it's even more difficult to contend that the consumer sale provisions will facilitate collusion.
xxxviii. Settlement Agreement at § 4.2.
xxxix. Ends, Means, and the Future of Books, supra note 3at 5.
xl. Broadcast Music, Inc. v. CBS, 441 U.S. 1, 9 (1979) (quoting United States v. Topco Assoc.'s, Inc., 405 U.S. 596, 607-08 (1972) ("It is only after considerable experience with certain business relationships that courts classify them as per se violations . . . .")).
Xli. Ends, Means, and the Future of Books, supra note 3 at 5.
xlii. BMI, 441 U.S. at 9 (further noting that "[l]iteralness is overly simplistic and often overbroad.").
xliii. Id. at 18 (emphasis added).
xliv. Id. at 20.
xlv. Ends, Means, and the Future of Books, supra note 3 at 6. He also noted that a "common theme" among his concerns "is that they all relate to, or are magnified by, centralized power." Id. at 7.
xlvi. Id. at 14.
xlvii. Department of Justice Business Review Letter, Copyright Clearance Center, Inc., Aug. 2, 1993, available at www.usdoj.gov/atr/public/busreview/211651.htm.
xlviii. Id.
xlilx. Id.
l. How to fix the Google Book Search Settlement, supra note 3 at 13.
li. Settlement Agreement at § 6.1.
lii. Id. at 6.
liii. See, e.g., David A. Balto, Networks and Exclusivity: Antitrust Analysis to Promote Network Competition, 7 George Mason Law Review 523, 537-43 (1999).
llv. Settlement Agreement at § 3.8(a).