Proactive FTC/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 FTC and DOJ need 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 FTC and DOJ, on the other hand, can help to mitigate anticompetitive concerns. Additionally, such a stance will ensure that the FTC, DOJ, and the public have an adequate opportunity 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, its inquiry must be a vigorous, thorough analysis of the settlement’s antitrust implications. The settlement’s hasty approval could prove costly.

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

Accepted Paper Series