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Why the Google Books Settlement is Procompetitive

69 Pages Posted: 4 Jan 2010 Last revised: 27 Oct 2012

Einer Elhauge

Harvard Law School

Date Written: May 20, 2010

Abstract

Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of-copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed in-copyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for commercially unavailable books, which by definition would otherwise have no new output.

Keywords: Google, books, Google Books, Google Books Settlement, copyright, digital books, cartel, monopoly, monopolization, orphan books, out-of-copyright, out-of-print, entry barriers, restraints of trade, Internet, antitrust

JEL Classification: K21, L12, L4, L41, L42, L49

Suggested Citation

Elhauge, Einer, Why the Google Books Settlement is Procompetitive (May 20, 2010). The Journal of Legal Analysis, Vol. 2, No. 1, p. 1-68, 2010. Available at SSRN: https://ssrn.com/abstract=1459028 or http://dx.doi.org/10.2139/ssrn.1459028

Einer R. Elhauge (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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