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Antitrust and the Google Books Settlement: The Problem of Simultaneity

Eric M. Fraser

Osborn Maledon, PA

June 10, 2009

Stanford Technology Law Review, No. 4, September 2010

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).

Number of Pages in PDF File: 24

Keywords: Google, Book Search, Copyright, Antitrust, Simultaneity, Orphan Works

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Date posted: June 11, 2009 ; Last revised: October 27, 2012

Suggested Citation

Fraser, Eric M., Antitrust and the Google Books Settlement: The Problem of Simultaneity (June 10, 2009). Stanford Technology Law Review, No. 4, September 2010. Available at SSRN: https://ssrn.com/abstract=1417722

Contact Information

Eric M. Fraser (Contact Author)
Osborn Maledon, PA ( email )
2929 North Central Avenue
Suite 2100
Phoenix, AZ 85012
United States
602-640-9321 (Phone)
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