Google Book Search Settlement: A New Orphan-Works Monopoly?

Intellectual Property, Competition Policy and Antitrust and Copyright and Trademark

Article Snapshot


Randal Picker


Journal of Competition Law & Economics, July 2009


This paper looks at how Google’s deal with book publishers affects consumers.

Policy Relevance

The court should change Google's settlement with book publishers and authors to limit price fixing, ensure competition in distributing orphan works, and clarify that the settlement does not create antitrust immunity.

Main Points

  • Google promised wide access to digital copies of the world’s books, but risked violating copyright law. Authors and publishers’ groups sued. Settlement was reach in October of 2008.
  • The court must assess the fairness of the settlement agreement; copyright owners who do not agree to the terms may opt out entirely or remove single works by the deadline.
    • Orphan works are those for which no owner can be found; these unidentified owners are not likely to opt out. So the settlement gives Google rights to use orphan works. None of Google’s competitors have similar rights. This might give Google too much market power, and the settlement should be changed.
    • The settlement does not apply to works published after January 5, 2009.
    • The settlement creates a library of digital works called the “Research Corpus.” Third party access to the library is limited.
  • If all the authors in the universe agreed to sell digital copies of their books for a set price, this is price fixing and would violate antitrust law. Google has been asked to create a formula to maximize revenues from the sales of copyrighted works. This might violate antitrust law.
  • If the court approves the settlement agreement, it might make Google immune from antirust attack. The court should specify that no immunity is intended. 

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