The Proposed Google Book Settlement – Assessing Exclusionary Effects

Abstract

The proposed settlement of a copyright infringement suit brought against Google’s plan to digitize and make available of millions of books includes a structure under which Google sets access and sales prices and distributes revenues collects to rightsholders. The Department of Justice (DOJ) and others regard this as price fixing and monopolization, particularly inclusion of “orphan books” whose rightsholders cannot be found. Others claim that the proposal increases access to books, including orphans, facilitates entry by allowing copyright holders to allow others to distribute digital copies, and improves prospects for finding rightsholders of orphan books. This overview suggests that collective rights may become widespread as more media are digitized. “Most favored nation” clauses may excessively extend coverage over digitization provided by others. Exclusivity requires delineating a complement market Google would control, here books — difficult as copyright limits substitutability. A remaining question is how and whether adverse possession applies in copyright.

Keywords: Google Books, antitrust, exclusion, monopolization, price fixing, copyright, collective rights

JEL Classification: L41, O34, K11, K21, L86