Proactive DOJ Intervention in the Google Book Search Settlement: Defending Our Public Values, Protecting Competition

Abstract:     
As it undertook its massive book digitization project, Google drew the ire of authors and publishers when it began scanning thousands of copyrighted books without authorization. Authors and publishers filed a class action lawsuit that challenged Google’s fair use of their copyrighted works, and the parties subsequently agreed to a comprehensive settlement. While this settlement has many provisions that promote the normative public interest goals of access to knowledge and technological innovation, many other provisions raise antitrust concerns. The settlement establishes a market with high barriers to entry and promotes a court-sanctioned monopoly in the market for searchable, digitized books. Because the public interest values implicated by this settlement are substantial, this paper argues that the DOJ needs to proactively intervene to ensure that the settlement is narrowly tailored to promote competition in the market for searchable, digitized books. Without appropriate intervention, it is likely that the settlement will be agreed to in its current form. A proactive stance by the DOJ can help to mitigate anticompetitive concerns. Additionally, such a stance will ensure that both the DOJ and the public have adequate opportunities to reflect on the future of digital books and the public interests that are at stake. While the DOJ has recently begun an antitrust inquiry into the settlement and has expressed some antitrust concerns in a court filing, its inquiry must be a vigorous, thorough analysis of the settlement’s antitrust implications. The settlement’s hasty approval could prove costly, and DOJ antitrust oversight should be maintained if the settlement is approved.

Keywords: Google Book Search Settlement, antitrust, competition, digital libraries

Accepted Paper Series