Citations (1)


Footnotes (336)



The Google Book Settlement and the Fair Use Counterfactual

Matthew Sag

Loyola University Chicago School of Law

October 9, 2010

New York Law School Law Review, Vol. 55, 2010
The DePaul University College of Law, Technology, Law & Culture Research Series Paper No. 10-001

The sprawling Google Book litigation began as a dispute between the search engine colossus and a variety of authors and publishers over the legality of book digitization for the purpose of indexing paper collections and making them searchable. However, through the metamorphic power of class-action litigation, a dispute over mere indexing and search has been transformed into a comprehensive agreement over the future of the book as a digital commodity. Understanding this transformation and its implications is the central ambition of this Article. It does so by comparing the pending (now amended) Google Book settlement to the most likely outcome of the litigation the settlement resolves. This counterfactual provides a useful benchmark by which to assess the effects, and thus the merits, of the Google Book Search settlement.

The Settlement differs from the predicted fair use ruling in four critical areas. First, the Settlement permits Google to engage in a significant range of uses, including the complete electronic distribution of books that go well beyond fair use. Second, the Settlement provides for initial cash payments by Google to the copyright owners and a fairly generous revenue sharing agreement, neither of which would have been required under a fair use ruling. Third, the agreement creates a new set of institutional arrangements that will govern the relationship between Google and the copyright owners covered by the Settlement. The foundations of this new institutional framework are the Settlement agreement itself, the creation of a collective rights management organization called the “Book Rights Registry” and the “Author-Publisher Procedures.” The fourth area in which the Settlement differs from the likely fair use outcome relates to the accessibility, commoditization, and control of orphan works.

Number of Pages in PDF File: 47

Keywords: Google, Google Book Search, Google Settlement, Authors Guild, Copyright, Fair Use, Class Action, Antitrust

JEL Classification: K00

Accepted Paper Series

Download This Paper

Date posted: July 23, 2009 ; Last revised: October 27, 2012

Suggested Citation

Sag, Matthew, The Google Book Settlement and the Fair Use Counterfactual (October 9, 2010). New York Law School Law Review, Vol. 55, 2010; The DePaul University College of Law, Technology, Law & Culture Research Series Paper No. 10-001. Available at SSRN: http://ssrn.com/abstract=1437812

Contact Information

Matthew Sag (Contact Author)
Loyola University Chicago School of Law ( email )
25 E. Pearson
Chicago, IL 60611
United States

Feedback to SSRN

Paper statistics
Abstract Views: 4,997
Downloads: 734
Download Rank: 18,857
Citations:  1
Footnotes:  336
People who downloaded this paper also downloaded:
1. Sustaining Fixed Exchange Rates: A Model with Debt and Institutions
By Alexander Pitt

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.391 seconds