Google Books or The Future of Books

Google Book Search and the Future of Books in Cyberspace
Pamela Samuelson†
INTRODUCTION
One of the most significant developments in the history of books, as well perhaps
in the history of copyright, is the massive digitization project that Google, Inc. has
undertaken in partnership with more than forty major research libraries and thirty
thousand publishers.1 Google has already scanned and digitized the contents of more than
ten million books.2 Approximately two million are books that are both in-print and in-
copyright, the publishers of which may have agreed to participate in the Google Book
Search (GBS) Partner Program.3 Two million others are books that Google believes to be
in the public domain.4 At least six million are books that are in-copyright, but out-of-
print.5 Google has not indicated the upper bounds of the GBS corpus of books, but
expectations are that it will grow much larger.6
Google currently allows users of its search engine to download the full texts of
individual public domain books.7 It also provides a few short snippets of the texts of in-
copyright books responsive to user queries.8 But unless the books‘ rights holders have
1
See, e.g., Competition and Commerce in Digital Books: Hearing Before the H. Comm. on the Judiciary,
110th Cong. 1-3 (2009) [―Hearing”] (Testimony of David Drummond, Senior Vice President of Corporate
Development and Chief Legal Officer of Google, Inc.) [―Drummond Testimony‖] (discussing the Google
Book Search (GBS) initiative). Others, however, predict that a globally available Kindle ―could mark as
big a shift for reading as the printing press and the codex.‖ See Stephen Marche, The Book that Contains
All Books, WALL. ST. J., Oct. 17-18, 2009, at W9.
2
Drummond Testimony, supra note 1, at 2. Only a few weeks later, at the Oct. 9, 2009, D is for Digitize
Conference at New York Law School, Dan Clancy, Chief Engineer of the GBS project, announced that the
GBS corpus had grown to 12 million books. This does not, however, mean that there are twelve million
unique books in the GBS corpus. Google has sometimes scanned more than one copy of particular books.
3
The Google Partner Program enables copyright owners of books to contract with Google about inclusion
of their books in the GBS corpus and displays that Google can (or cannot) make of these books. See
Google Books, Information for Authors and Publishers, available at
http://www.google.com/googlebooks/publishers.html. See also Settlement Agreement § 1.62, Authors
Guild, Inc. v. Google, Inc., No. 05 CV 8136 (Oct. 28, 2008), available at
http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf [―Settlement Agreement‖]
(defining the Partner Program). Relatively little is publicly known about the Google Partner Program and
its terms, as Google requires its partners to sign non-disclosure agreements about the terms.
4
Drummond Testimony, supra note 1, at 3.
5
Id.
6
See, e.g., Letter from Paul Courant to Judge Denny Chin, Authors Guild, Inc. v. Google, Inc., No. 05 CV
8136 (S.D.N.Y. Sept. 4, 2009), available at http://thepublicindex.org/docs/letters/Courant.pdf [―Courant
Letter‖] (estimating that Google will scan 50 million unique books for GBS).
7
Public domain books scanned by Google are in pdf form and bear a Google watermark. Google has
licensed the GBS sub-corpus of public domain books to Sony so that these books can be made available for
the Sony e-book reader. See Brief for Sony Electronics Inc. as Amici Curiae Supporting the Settlement
Agreement, Authors Guild Inc. v. Google Inc., No. 1:05 CV 8136 (S.D.N.Y. Sept. 8, 2009), available at
http://thepublicindex.org/docs/letters/sony.pdf. While Google may intend to continue to make all public
domain books freely downloadable, there is nothing, so far as I can tell, that would prevent Google from
deciding to withdraw these books from display uses or to charge for them in the future.
8
If the settlement is approved, snippets will no longer be available for in-print books unless the rights
holder has specifically agreed to allow this display use. See Settlement Agreement, supra note 3, § 3.2(b)
Electronic copy available at: http://ssrn.com/abstract=1535067

enrolled in the Google Partner Program and agreed to allow more extensive access to the
books‘ contents, the public can only get access to snippets from most books at this time.
The Authors Guild and five publishers charged Google with copyright
infringement for scanning in-copyright books in 2005.9 A settlement of this lawsuit was
announced in October 2008, and is currently awaiting judicial review.10
Access to books in the GBS corpus will be dramatically affected if the judge in
the Authors Guild v. Google case decides to approve the proposed settlement agreement.
The biggest change will be far broader access to out-of-print books.11 Open Internet
searches will no longer yield only snippets of such books, but now up to 20 percent of
their contents. Public libraries and nonprofit higher education institutions will be eligible
for some free public access terminals, although most are expected to acquire institutional
subscriptions for full access to out-of-print books (unless their rights holders have
directed Google not to display the contents of these books).12
The GBS initiative has certainly heightened public awareness about the social
desirability of creating a digital corpus of millions of books from major research
libraries.13 But it has also proven to be quite controversial. Harvard Librarian Robert
Darnton has aptly observed that a project as ambitious as Google Book Search is ―bound
to elicit reactions of two kinds...on the one hand, utopian enthusiasm, on the other,
jeremiads about the dangers of concentrating power to control access to information.‖14
This Article will consider the future of books in cyberspace with a particular focus on
how this future may be affected by the approval or disapproval of a settlement of the
GBS litigation.
Part I discusses impediments to mass digitization projects, such as GBS, and how
Google overcame them. It explains the litigation that challenged Google‘s mass
digitization project, the proposed settlement agreement, and some reasons why the
settlement has become controversial. Part II contrasts some glowingly positive
predictions about the future of books if the GBS deal is approved with predictions of far
more negative futures for books that some critics foresee if the GBS settlement is
approved. Part III considers what may happen to GBS and the future of books in
cyberspace if the settlement is not approved. It recommends that major research libraries
collaborate in the creation of a digital library of books from their collections as an
alternative to GBS, regardless of whether the proposed settlement is approved. This
digital library could greatly expand access to books, while avoiding certain risks to the
public interest that the GBS settlement poses.
(classification of a Commercially Available book as ―No Display‖); § 2.3(d)(i) (the initial determination of
Commercially Available will be used to classify books as ―In-Print‖ or ―Out of Print‖); § 3.4(allowing only
Non-Display uses for No Display Books).
9
See infra notes 33-34 and accompanying text.
10
11
12
13
See, e.g., Letter from members of the Stanford University Computer Science Department to Judge Denny
Chin, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136, (S.D.N.Y. Sept. 3, 2009), available at
http://thepublicindex.org/docs/letters/stanford_cs.pdf [―Stanford Letter‖]; Michael Masnick, Focusing In on
the Value: Google Books Provides an Amazing Resource, TECHDIRT, Oct. 2, 2009,
http://www.techdirt.com/articles/20091002/0331316405.shtml.
14
ROBERT DARNTON, THE CASE FOR BOOKS 15 (2009).

I. MASS DIGITIZATION OF BOOKS AND THE CONTROVERSIES
GENERATED BY GBS
Librarians and academic researchers recognize that it is highly desirable to

digitize the codified and generally well-curated knowledge embodied in the tens of
millions of books in the collections of major research libraries for purposes of making a
database of these books that is searchable and widely accessible to the public.15 Although
some book digitization projects have been undertaken,16 there have been at least three
significant impediments to mass digitization projects.
One impediment is cost. High quality book scans cost approximately $30 a book,
which means that a large-scale project like the twenty million book goal of the GBS
project would cost about $600 million.17 This may not be a lot of money for a
commercial entity with resources such as substantial as Google‘s, 18 but the cost of
digitization is a major inhibitor of large-scale projects for university libraries and
nonprofit organizations such as the Internet Archive.
A second impediment is access to millions of books.19 The richest sources of
books for mass digitization projects are the libraries of major research institutions, such
as the University of Michigan, Stanford University, and University of California.20 The
collections of these book-rich institutions overlap far less than one might expect.21 It
would thus be desirable for a mass digitization project to include books from multiple
research libraries. Books from these collections are dense with knowledge that could be
invaluable if made part of one large corpus of books. It is, however, disruptive for
15
See, e.g., Courant Letter, supra note 6, at 1-2.
16
See, e.g., Brief for Internet Archive as Amicus Curiae in Opposition to the Settlement Agreement at 3-4,
Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136 (S.D.N.Y. Sept. 8, 2009) (discussing the Internet
Archive‘s collection of over one million books); Brief for Questia Media, Inc. as Amici Curiae in
Opposition to the Settlement Agreement at 3, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136
(S.D.N.Y. Sept. 9, 2009) (noting Questia, Inc.‘s archive of ―74,000 books, 181,000 journal articles, 213,000
magazine articles, and 2.1 million newspaper articles‖).
17
This estimate of per-book scans derives from a conversation I had with Brewster Kahle, founder of the
Internet Archive, in New York, NY, on Sept. 17, 2009. It does not include the costs of labor required to
remove books from library shelves, make records about books being shipped, deliver them to a mass
digitization facility, and restack books on library shelves upon return. These costs may also be substantial.
Concerning the 20 million book aspiration for GBS, see, e.g., KEN AULETTA, GOOGLED: THE END OF THE
WORLD AS WE KNOW IT 258 (2009) (indicating that Google‘s goal for GBS is 20 million books).
18
Even Microsoft, a firm with financial resources to engage in mass-digitization, decided not to proceed
with a digitization project because of high costs. See Satya Nadella, Book Search Winding Down,
Microsoft Bing Community, May 23, 2008, available at
http://www.bing.com/community/blogs/search/archive/2008/05/23/book-search-winding-down.aspx
(economic reasons for Microsoft‘s shutting down its digitization project after scanning of 750,000 books
and 80 million journal articles).
19
See, e.g., Brian Lavoie, et al., Anatomy of Aggregate Collections, D-LIB MAG., Sept. 2005, at 3-4,
available at http://www.dlib.org/dlib/september05/lavoie/09lavoie.html (estimating that there are 32 million
unique books in libraries of the world, 18 million of which are in the collections of the five libraries with
which Google initially partnered in the GBS project, for an average collection of 3.6 million books each).
20
See, e.g., Courant Letter, supra note 6, at 1 (estimating that Michigan‘s partnership with Google in GBS
will enable Michigan to preserve 8 million books).
21
Lavoie, et al., supra note 19, at 5 (only 40% of the books in the collections of the five libraries with
which Google commenced GBS were held in more than one of the five institution‘s libraries).

libraries to make books available to be scanned, and libraries have legitimate concerns
that books could be damaged in the digitization process.22
A third, and most daunting, of the impediments is copyright.23 A substantial
majority of the books in collections of major research libraries are in-copyright and likely
to remain so for several decades.24 Many of these books should be in the public domain.,
as they were published before 1978, an era in which copyrights lasted twenty-eight years,
although they were renewable for another twenty-eight years if authors registered for a
new term with the U.S. Copyright Office (which most rights holders failed to do).25 Had
copyright terms not been repeatedly extended by Congress, 26 all books published before
1953 would now be in the public domain, as would most of the books published before
1978 insofar as their rights holders did not bother to renew the copyright. Because of
copyright term extensions, books first published in 1960 are, however, unlikely to be out
of copyright until 2055.27 However regrettable and ill-advised these copyright term
extensions may have been,28 they are a reality with which librarians and other would-be
digitizers of books must contend when contemplating mass digitization projects.
Google had the vision, technology, and financial resources to undertake a mass
digitization effort in 2004. It also had a plan for wooing libraries to make their books
available for GBS corpus building,29 and a fair use defense for scanning books to index
their contents that it decided was strong enough to overcome the copyright constraint.30
22
Some earlier preservation projects resulted in damage and destruction of materials. See, e.g., DARNTON,
supra note 14, at 112-17.
23
Id. at 36. Jonathan Band has estimated the average transaction costs of seeking book rights clearances
for a multi-million book digitization project to be about $1000, and this does not include the license fee that
the rights holder would charge for inclusion of his/her work in the corpus. See Jonathan Band, The Long
and Winding Road to the Google Books Settlement, 27 JOHN MARSHALL REV. INTELL. PROP. L. 227, 229
(2009).
24
See Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of Potentially In-copyright Print
Books in Library Collections, D-LIB MAG., Nov.-Dec. 2009, available at
http://www.dlib.org/november09/lavoie/11lavoie.html (estimating that about 2/3 of the books in major
research library collections are still in copyright).
25
17 U.S.C. § 24 (superseded 1978). The Copyright Act of 1976, which became effective in 1978, 17
U.S.C. § 101, et seq., eliminated the renewal period and extended the terms of new copyrights to life of the
author plus fifty years, which made it more difficult to predict, just by looking at a copy of the work, when
the copyright had expired. This same act extended the terms of existing copyrights in pre-1978 works to
approximate the new copyright term. The 1976 Act also lightened burdens on copyright owners to give
notice of their copyright claims and to register their works; in 1989, these burdens were almost completely
eliminated. The implications for the public domain of the U.S. decision to drop formalities requirements,
such as notice and renewals of copyrights, are explored in Christopher Springman, Reform(aliz)ing
Copyright Law, 57 STAN. L. REV. 485 (2004).
26
See Eldred v. Ashcroft, 537 U.S. 186, 194-95 (2003) (recounting the history of copyright term
extensions).
27
17 U.S.C. § 304 (2006).
28
See, e.g., Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36
LOY. L.A. L. REV. 123 (2002) (arguing that the 1998 term extension was irrational and should be ruled
unconstitutional).
29
This includes a willingness on Google‘s part to indemnify library partners for any copyright liability they
might incur for contributing to the Google digitization project. See University of Michigan Cooperative
Agreement § 10.1 (June 15, 2005), available at http://www.lib.umich.edu/files/services/mdp/um-google-
cooperative-agreement.pdf [―Michigan Agreement‖]. The liability risk is higher for private universities,
such as Stanford, than for public universities, such as University of Michigan, because of Eleventh
Amendment case law suggesting that state universities cannot be held liable in damages for copyright
4
The Google scanning project initially met with mixed reactions. Some
commentators welcomed it and championed Google‘s fair use defense.31 Some author
and publisher groups, however, were highly critical of Google‘s scanning of in-copyright
books.32
The Authors Guild responded to Google‘s book scanning project in September
2005 by bringing a class action lawsuit to challenge the scanning as copyright
infringement.33 A month later, five major publishers, all of whom, interestingly enough,
were members of the Google partner program, brought a similar lawsuit against Google.34
In the spring of 2006,35 the publisher plaintiffs sat down with Google and
representatives of the Authors Guild to explore how the parties might achieve a
infringement. See, e.g., Chavez v. Arte Publico Press, 204 F.3d 601 (5 th Cir. 2000)(University of Houston
has 11th Amendment immunity from damage liability for copyright infringement).
30
See, e.g., Eric Schmidt, Books of Revelation, WALL ST. J., Oct. 18, 2005, at A18, available at
http://online.wsj.com/article/SB112958982689471238.html (―We have the utmost respect for the
intellectual and creative effort that lies behind every grant of copyright. Copyright law, however, is all
about which uses require permission and which don't; and we believe . . . that the use we make of books we
scan through the Library Project is consistent with the Copyright Act, . . . without [the need for] copyright-
holder permission.‖). Google did not at that time publicly discuss its plans for making what are now called
―non-display uses‖ of books in the corpus. See infra notes xx and accompanying text. And neither lawsuit
mentioned non-display uses of GBS books as possible bases for infringement. However, these uses were
probably a strong driving force for undertaking the GBS project, as they will allow Google to do many
useful things, such as refine its search technologies and automated translation tools. See generally Jeffrey
Toobin, Google’s Moon Shot, NEW YORKER, Feb. 5, 2007 (discussing the development of the GBS
project).
31
See, e.g., Jack Balkin. Search Me Please, BALKINIZATION, Sept. 28, 2005, available at
http://balkin.blogspot.com/2005/09/search-me-please.html. In February 2006, I hosted a workshop of about 15
copyright professors to discuss Google‘s fair use defense in the Authors Guild case. The general consensus at
that meeting was that this fair use defense was likely to succeed. Scholarly commentary has generally been
supportive of Google‘s fair use defense. See, e.g., Hannibal Travis, Google Book Search and Fair Use: iTunes
for Authors or Napster for Books?, 61 U. MIAMI L. REV. 601 (2006) (arguing that scanning books to index them
is fair use). See also Band, supra note 23, at 237-60 (discussing the merits of Google‘s fair use defense in the
Authors Guild case); Matthew Sag, The Google Book Settlement and the Fair Use Counterfactual (Working
paper Series, Aug. 2009) at 11-25, available at http://ssrn.com/abstract=1437812 (comparing the proposed GBS
settlement to fair use outcome); Frank Pasquale, Copyright in an Era of Information Overload, 60 VAND. L.
REV. 135 (2007) (discussing the need for broad fair use for search engines to help people find information).
32
See, e.g., Patricia Schroeder, Google Cannot Rewrite U.S. Copyright Laws, WALL ST. J., Oct. 25, 2005.
Schroeder‘s position is consistent with a recent decision by a French court, which held Google liable for
copyright infringement arising from its scanning of books owned by French rights holders. See, e.g.,
Matthew Saltmarsh, Google Loses in French Copyright Case, N.Y. TIMES, Dec. 19, 2009, available at
http://www.nytimes.com/2009/12/19/technology/companies/19google.html.
33
See Class Action Complaint, Authors Guild, Inc. v. Google, Inc., Case No. 05 CV 8136 (S.D.N.Y. Sept.
20, 2005).
34
See Complaint, McGraw Hill Co. v. Google, Inc., Case No. 05 CV 8881 (S.D.N.Y. Oct. 19, 2005);
Toobin, supra note 30, at [3] (publisher plaintiffs were in Google‘s partner program when the lawsuit was
filed).
35
Although it has been pending for more than four years, the Authors Guild case is in relatively early stages
as a litigation. See, e.g., Objection of Scott E. Gant to Proposed Settlement and to Certification of the
Proposed Settlement Class and Sub-Classes at 3, Authors Guild, Inc. v. Google, Inc., Case No. 05 CV 8136
(DC), available at http://www.publicindex.org/docs/objections/gant.pdf. (pointing out how little discovery
and motion practice have been done in the case). At the Oct. 7, 2009, status conference, Michael Boni,
lawyer for the author subclass, stated that no depositions have been taken in the case. Transcript of Status
Conference, Oct. 7, 2009 at 9, Authors Guild, Inc. v. Google, Inc., Case No. 05 CV 8136 (DC), available at
http://thepublicindex.org/docs/case_order/Status%20Conference%20Transcript.pdf. During the two and a
5
settlement of the lawsuits. Negotiations continued for more than two years. Google
brought its library partners into some of these negotiations in part because the litigants
envisioned a settlement under which Google would provide institutional subscriptions to
libraries, and the settlement agreement needed to include some provisions for this,
including a price setting mechanism.36
In late October 2008, Google announced it had reached a $125 million agreement
to settle the lawsuits.37 The proposed settlement agreement provided for the consolidation
of the two lawsuits into one class action, whose plaintiffs now consisted of an Author
Subclass and a Publisher Subclass to represent all persons or entities having a U.S.
copyright interest in one or more books as of Jan. 5, 2009.38 In light of U.S. treaty
commitments, this settlement would have given Google a license to virtually every in-
copyright book in the world.39
This GBS settlement, if approved, would have vastly increased availability of out-
of-print books. The deal would authorize Google to make up to twenty per cent of the
contents of out-of-print books available in response to search queries.40 In addition, the
entire texts of out-of-print books would, by default, become accessible through consumer
purchases, institutional subscriptions, and public library access terminals (unless the
rights holder of particular out-of-print books specifically requests that the contents not be
displayed).41
Two weeks after the GBS settlement was announced, the judge then presiding
over the Authors Guild case provisionally approved the proposed settlement and
provisionally certified the class for purposes of notifying class members about the
settlement and allowing them to opt out, object, or otherwise comment on the terms of
half years before the GBS settlement was announced, Google knew that it could scan books with impunity
because it had already reached a settlement agreement with these plaintiffs.
36
See Settlement Agreement, supra note 3, Arts. IV, VII, & VIII.
37
Press Release, Google, Inc., Authors, Publishers, and Google Reach Landmark Settlement (Oct. 28,
2008), available at http://www.google.com/intl/en/press/pressrel/20081027_booksearchagreement.html.
Only $45 million has been set aside as payouts to rights holders whose books Google has already scanned,
$60 for each book, $15 for each insert, and $5 for each partial insert. The lawyers for the author and
publisher subclasses will get a total of $45.5 million if the settlement is approved. The rest of the
settlement funds are being used to create the new collecting society, the Book Rights Registry, which will
be created upon approval of the settlement, although $12 million has been spent on administrative matters,
such as notifying members of the class about the settlement. See Amended Settlement Agreement, § 2.1
(describing benefits of the settlement to the class), Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136
(DC) (S.D.N.Y. Nov. 13, 2009), available at
http://thepublicindex.org/docs/amended_settlement/amended_settlement.pdf [―Amended GBS
Agreement‖]. It is not surprising that the litigants would have wanted to settle the GBS lawsuits. See, e.g.,
Toobin, supra note 30, at [5] (predicting that the GBS lawsuits would settle and indicating that publishers
wanted to make a deal). One factor that enhanced Google‘s interest in a settlement was its potential
exposure for statutory damage awards which has been estimated at $3.6 trillion. See, e.g., Band, supra note
23, at 229. The proposed settlement was, however, surprising because of its sweeping scope. Id., at 260.
38
See Settlement Agreement, supra note 3, §§ 1.14 & 1.120, Attach. H, ¶ 7.
39
Members of international copyright treaties agree to recognize copyrights in their countries of all works
of foreign nationals whose countries are members of that treaty. See, e.g., SAM RICKETSON & JANE C.
GINSBURG, BERNE CONVENTION AND BEYOND: INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS
AGREEMENTS FROM 1886 TO THE PRESENT § 6.89 (2d Ed. 2006). The license would be broader for out-of-
print than in-print books, but Google would be able to make non-display uses of all books in the corpus.
40
See Settlement Agreement, supra note 3, §§ 3.2, 3.3.
41
Id., §§ 1.1, 1.48, 3.2(b).
6
the settlement.42 The initial schedule called for opt-outs, objections, and comments to be
filed with the court by May 5, 2009, and a fairness hearing on June 11, 2009.43 In late
April Judge Denny Chin extended the comment and opt-out period to September 4, 2009
and reset the fairness hearing to October 7, 2009.44
Approximately four hundred documents commenting on the proposed GBS
settlement were filed with the court in early September 2009, the overwhelming majority
of which were critical of the settlement.45 The most important submission was a mid-
September U.S. Department of Justice (―DOJ‖) filing of a Statement of Interest that
recommended against approval of the proposed settlement.46 DOJ perceived several
antitrust problems with the settlement.47 DOJ was also troubled by interclass conflicts
adequacy of notice, and other problems with the settlement as a matter of class action
law.48
42
Order, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136, Nov. 14, 2008, available at
http://thepublicindex.org/docs/motions/approval/order_granting_preliminary_approval.pdf.
43
Order, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136 (DC), April 28, 2009, available at
http://thepublicindex.org/docs/motions/approval/order_allowing_extension.pdf.
44
Id.
45
See, e.g., Brandon Butler, The Google Books Settlement: Who Is Filing and What Are They Saying?
(Ass‘n Res. Libr.) Sept. 28, 2009, at 3, available at http://www.arl.org/bm~doc/googlefilingcharts.pdf.
Butler characterizes the objections as falling into one of three categories: that the GBS settlement would be
harmful to competition, to rights holders, or to users (e.g., inadequate privacy protections). Id. Many
submissions raised concern about the monopoly that the settlement would give Google over ―orphan
works,‖ that is, books whose rights holders cannot readily be located. See, e.g., Brief Amicus Curiae of
Consumer Watchdog in Opposition to the Settlement at 11-14, Authors Guild, Inc. v. Google, Inc., Case
No. 05 CV 8136 (DC) (S.D.N.Y. Sept. 8, 2009), available at http://thepublicindex.org/docs/letters/cw.pdf;
Brief Amicus Curiae of Public Knowledge in Opposition to the Settlement at 5-10, Authors Guild, Inc. v.
Google, Inc., Case No. 05 CV 8136 (DC) (S.D.N.Y. Sept. 8, 2009), available at
http://thepublicindex.org/docs/letters/pk.pdf. The ―orphan work‖ issue is discussed infra note 74 and
accompanying text, as well as in Part II-B-6.
46
Statement of Interest by the U.S. Dept. of Justice Regarding the Proposed Settlement at 27, Authors
Guild, Inc. v. Google, Inc., Case No. 05 CV 8136 (DC) (S.D.N.Y. Sept. 18, 2009), available at
http://thepublicindex.org/docs/letters/usa.pdf [―DOJ Statement‖]. DOJ did not reach firm conclusions
about the antitrust or other legal issues addressed in this Statement, but it did indicate its preliminary
analysis gave rise to serious enough concerns that DOJ recommended against the settlement. Id. at 2.
Commentators have differing views on the antitrust implications of the GBS settlement. University of
Chicago Law Professor Randal Picker has raised antitrust concerns about it in two articles. See, e.g, Randal
C. Picker, Assessing Competitive Issues in the Amended Google Book Search Settlement, Nov. 16, 2009,
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507172; Randal C. Picker, The Google
Book Search Settlement: A New Orphan Works Monopoly?, J. COMPET. L. & ECON. (forthcoming 2009),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1387582&rec=1&srcabs=1404247.
Harvard Law School Professor Einer Elhauge, however, argues that the GBS settlement should pass
antitrust scrutiny because it increases output and does not raise entry barriers for other firms. Einer
Elhauge, Why the Google Book Settlement is Pro-competitive, J. LEGAL ANALYSIS (forthcoming 2010),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1459028.
47
DOJ raised concerns about various pricing provisions of the settlement that might run afoul of the per se
rule against price fixing. DOJ Statement, supra note 46, at 17-22. It also expressed concern about the
potential foreclosure of competition that might result if Google got a license from the settlement class to
commercialize all out-of-print books that no other firm could get. Id. at 23-25.
48
DOJ raised concerns, for example, about provisions that would divert funds owed to orphan book rights
holders to payouts to registered rights holders that created a conflict of interest between registered and
unregistered rights holders. Id. at 8-9. DOJ also raised concerns about whether class members had
7
Shortly after DOJ recommended against approval of the settlement, lawyers for
the Author and Publisher Subclasses asked Judge Chin to postpone the fairness hearing in
order to give the parties time to negotiate new terms that would respond to the DOJ‘s and
other concerns.49 The lawyers filed an amended settlement agreement with the court on
November 13.50 Judge Denny Chin granted the motion for preliminary approval of the
amended settlement and set the date for a hearing about whether to approve the deal for
February 18, 2010.51
The most significant changes in the amended GBS settlement agreement pertain
to the composition of the settling class and to control over disposition of funds from
books whose rights holders do not come forward to claim funds derived from Google‘s
commercialization of their books. Foreign rights holders are now excluded from the
settling class, except owners of books published in the UK, Canada, and Australia. 52 The
amended agreement calls for appointment of a fiduciary to represent the interests of
owners of rights in unclaimed books and control over revenues owed to these rights
holders.53 The settling parties also made several changes to GBS pricing provisions in
response to DOJ concerns.54 Because DOJ also objected to open-ended provisions that
allowing Google to adopt unspecified new revenue models,55 the amended settlement
specifies three new revenue models through which Google may commercialize out-of-
print books in the future.56
II. THE FUTURE OF BOOKS IF THE GBS SETTLEMENT IS APPROVED
A. THE OPTIMISTIC PREDICTIONS
Google‘s General Counsel, David Drummond, painted a glowingly optimistic

picture of the future of public access to books and to the knowledge embodied in them in
his September 2009 testimony to Congress about the GBS settlement.57 He began by
asserting that approval of the settlement would allow young students in rural areas or
inner cities to go to public libraries and have access to millions of books at the free public
access terminal Google promises to provide to these libraries.58 Google has also promised
received adequate notice of the settlement. Id. at 12-13. Concerns about the fairness of the settlement to
foreign rights holders were also expressed by DOJ. Id. at 15-16.
49
Order, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136 (DC) (S.D.N.Y. Sept. 24, 2009), available at
http://thepublicindex.org/docs/case_order/20090924.pdf.
50
See, e.g., Amended GBS Agreement, supra note 37.
51
Order, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136 (DC) (S.D.N.Y. Nov. 19, 2009), available at
http://thepublicindex.org/docs/amended_settlement/order_granting_prelim_approval.pdf.
52
Amended GBS Agreement, supra note 37, at §§ 1.13 (definition of ―amended settlement class‖), 1.19
(definition of ―book‖).
53
Id. ,§ 6.2.
54
Id., § 4.2(b) (algorithmic pricing of books for consumer purchases to simulate prices of books in
competitive market); 4.5(b)(Google can discount prices).
55
Settlement Agreement, supra note 3, § 4.7 (allowing Google and the Book Rights Registry to agree on
new revenue models).
56
Id., § 4.7. The new revenue models include print on demand, file download, and consumer subscription.
57
58
Id. See also Presentation of Lateef Mtima, Session on P is for Public (emphasizing the benefits of GBS
for enhanced public access to books for disadvantaged communities), at the D Is for Digitize Conference,
Oct. 9, 2009, available at http://thepublicindex.org/documents/video-library. But see Settlement
8
that GBS will enable access for print-disabled persons.59 Approval of the settlement
would, Drummond predicted, ―create an educational, cultural, and commercial platform
to expand access to millions of books for anyone in the United States, enriching our
country‘s cultural heritage and intellectual strength in the global economy.‖60
Drummond also asserts that the GBS settlement would be a boon to authors
because their out-of-print books would be able to attract new readers.61 GBS may breathe
new commercial life into these works in at least three ways. First, Google will serve ads
to users whose queries yield GBS results, and authors or other rights holders will share in
the fruits of the ad revenues.62 Second, Google will sell institutional subscriptions to
universities and other entities.63 Third, Google anticipates ―revolutioniz[ing] the way
some people read books‖ by providing ―an open cloud-based platform where users buy
and store digital books in online personal libraries accessible from any Internet-connected
device.‖64 Revenues from consumer purchases, institutional subscriptions, and ads will be
split, 37 percent to Google and 63 percent to the Book Rights Registry (BRR) whose
principal task is to sign up rights holders so it can pay them their share of the monies
received from Google.65
Drummond noted that Google is ―partnering with bookstores, publishers, and
device manufactures to develop an open platform,‖ so that ―readers can find and purchase
digital books from any bookstore and read them on any device, including laptops, mobile
phones, and e-readers from multiple vendors.‖66 This would overcome the dissatisfaction
that some consumers feel about only being able to read their e-books only on a Kindle,
Nook, or other proprietary device.
Another settlement benefit, according to Drummond, would be an equalization of
higher education institutions.67 GBS public access terminals and institutional
subscriptions will enable small, medium, and even large size but resource-challenged
colleges and universities to, in effect, expand their collections to include millions of
Agreement, supra note 3, § 4.8(a)(iii) (―The Registry and Google may agree that Google may make
available the Public Access Service to one or more Public Libraries . . . either for free or for an annual fee,
in addition to the Public Access Services provided under Section 4.8(a)(i).‖) (emphasis added). Neither
public nor private school libraries will get GBS public access terminals. Users of Internet-enabled
computers at these schools can, however, see up to 20% of the contents of out-of-print books whose rights
holders have not turned off preview uses.
59
Drummond Testimony, supra note 1, at 1. Google plans to enable vision-impaired persons, for example,
to read GBS books in Braille or have access to audio tape versions. See also Hearing, supra note 1
(testimony of Marc Maurer, President, National Federation of the Blind).
60
Drummond Testimony, supra note 1, at 1. Although Drummond emphasized the benefits of the
settlement for authors, some objectors believe that publishers will obtain more benefits from the settlement
than authors will. See, e.g. Objection of Bloom, et al. to Settlement Agreement, Authors Guild, Inc. v.
Google, Inc., No. 05 CV 8136 (S.D.N.Y. Sept. 8, 2009), available at
http://thepublicindex.org/docs/objections/bloom.pdf.
61
62
Settlement Agreement, supra note 3, §§ 3.14, 4.4
63
Id. at § 4.1
64
Drummond Testimony, supra note 1, at 2. A fourth, although less touted, source of revenue envisioned
in the settlement is a fee that libraries will be charged for each page patrons print out from GBS books at
public access terminals. Settlement Agreement, supra note 3, § 4.8(a)(ii).
65
Id. at § 6.1 (c)-(d).
66
67
Id. at 4.
9
books from major research university collections. This would put students and faculty
from these institutions on a more even par with the students and faculty of schools such
as Stanford and Michigan. According to Paul Aiken of the Authors Guild, ―[t]he
settlement would turn every library into a world-class research facility.‖68
A further benefit of the GBS settlement, in the view of the Authors Guild, is the
creation of a new collecting society, the BRR, through which authors and publishers can
be paid for uses of their books not only by Google, but also by licenses granted to other
firms.69 To attract rights holders to sign up with BRR, Google plans to make $45 million
(and possibly more) available so that BRR can pay early registrants $60 for each book in
the GBS corpus in which they hold a copyright interest.70 BRR will likely prioritize its
search for rights holders by searching first for those whose books are generating the most
revenues.71
In his testimony to Congress, Drummond expressed optimism that the GBS
settlement would help to solve the ―orphan works‖ problem for books.72 In-copyright
books are sometimes described as ―orphans‖ if their rights holders are difficult or
impossible to find. One of the unfortunate consequences of copyright term extensions in
recent decades is that many works are now in-copyright for decades beyond the life of the
author; the older the work is, the more difficult it generally is to track down the
appropriate rights holder to get permission to use the work. It would be socially desirable
to make orphan works more widely available for educational, research, and other
purposes; there seems little reason to restrict uses of in-copyright works if there is no
rights holder that is available for getting a rights clearance. To address the orphan works
problem, the U.S. Copyright Office has proposed legislation to allow unauthorized uses
of orphan works as long as efforts were made to track down rights holders; orphan works
legislation remains on the Congressional agenda.73
Drummond has predicted that relatively few—under 20 percent—of the books in
the GBS corpus will ultimately turn out to be orphans.74 The basis for his optimism is that
BRR is charged with tracking down rights holders and signing them up for the benefits
that will come with participation in the GBS initiative.75 Once rights holders realize their
68
Hearing, supra note 1, at 4 (Statement of Paul Aiken, Executive Director of the Authors Guild).
69
See Settlement Agreement, supra note 3, at § 2.4 (recognizing the right of copyright owners to license
others to commercialize their books through the BRR or otherwise). It should be noted, however, that the
settlement does not directly confer on BRR the right to license any books.
70
Those who register with BRR before March 31, 2011, are eligible for this payout. Authors of Inserts and
Partial Inserts (e.g., of forewords, epilogues, essays in edited books) are entitled to $15 and $5 if they
register with BRR for an initial payment for scanning of their works. Settlement Agreement, supra note 3,
at § 5.1.
71
Conversation with Jan Constantine, Authors Guild lawyer, New York City, Aug. 5, 2009.
72
Drummond Testimony, supra note 1, at 6-7.
73
See, e.g., U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS (2006), available at
http://www.copyright.gov/orphan/orphan-report.pdf (proposing legislation to foster greater reuse of orphan
works). There are a number of reasons why books might be orphans: the publisher might, for instance,
have gone out of business; the author might have died, and his heirs might not realize that grandpa owned
rights in his books; or the author or other rights holder might have moved to India to join an ashram. See,
e.g., Band, supra note 23, at 230.
74
Drummond Testimony, supra note 1, at 6. Others have much higher estimates of the percentage of
orphan and other unclaimed books in the GBS corpus. See, e.g., Band, supra note 23, at 294 (estimating
that 75% of books will remain unclaimed).
75
Settlement Agreement, supra note 3, at § 6.1(c).
10
books are generating income, Drummond expects they will come forward to participate
in the revenue-sharing program GBS envisions.76 He denied that Google would have a
monopoly over orphan books, for any firm could do what Google did.77 Drummond
reaffirmed Google‘s strong support for orphan works legislation.78 Such legislation could
allow others to digitize orphan books. Drummond believes that Google‘s competitors will
be able to get a license from the BRR to commercialize all of the valuable out-of-print
books, except the orphaned ones.79 In the absence of the settlement, moreover, no one has
a license to make orphan books available, so the Google deal should be welcomed for
opening up a new market that otherwise wouldn‘t exist.80
Drummond‘s Congressional testimony did not mention two other significant
benefits—one accruing to Google and the other accruing to nonprofit researchers—that
would attend approval of a GBS settlement agreement. Google has a right under the
settlement to make ―nondisplay‖ uses of books in the corpus.81 These nondisplay uses of
books in the corpus will allow Google to refine its search technologies, develop improved
translation tools, and create other new services that will make GBS a more useful and
valuable resource.82 Google also plans to make access to the GBS corpus available at two
university host sites, which can then make the corpus available to nonprofit researchers to
engage in ―nonconsumptive‖ research on it.83
The availability of a corpus of millions of digitized books is not only, and
possibly not mainly, of value to scholars because it would enable access obscure volumes
on arcane subjects (e.g., medieval watermills or Lithuanian tapestries), but rather because
a digitized and searchable corpus of books would allow scholars to learn a great deal
through computational analysis of the contents of books in the corpus.84 This would make
it possible, for instance, to trace the spread of the influence of a particular thinker by
76
Drummond Testimony, supra note 1, at 6-7.
77
Id. at 5. There is reason to doubt this, for Google‘s settlement of the Authors Guild lawsuit puts at risk
the next person‘s fair use defense, even for scanning to index books, because Google‘s willingness to settle
the lawsuit may be viewed as a concession that it needed a license to engage in this scanning. Far riskier
would be scanning for the purpose of developing a competing database of books to GBS. See Pamela
Samuelson, Google Books is Not a Library, HUFF. POST, Oct. 13, 2009, available at
http://www.huffingtonpost.com/pamela-samuelson/google-books-is-not-a-lib_b_317518.html.
78
Drummond Testimony, supra note 1, at 6. Drummond also suggested that many orphan books will turn
out to be commercially insignificant, so even if Google is the only firm to have a license to them, the
insignificance of these orphans would not give Google a competitive advantage over others. Id.
79
Id. at 7.
80
See, e.g., Elhauge, supra note 46, at 51-52.
81
Amended GBS Agreement, supra note 37, §§ 3.3(a), 3.4(a). Non-display uses are defined as ―uses that
do not display Expression from Digital Copies of Books or Inserts to the public.‖ Id., § 1.94.
82
See, e.g. Objection of Yahoo! Inc. to Settlement Agreement at 25, Authors Guild, Inc. v. Google, Inc.,
No. 1:05 CV 8136 (DC) (S.D.N.Y. Sept. 8, 2009), available at
http://www.publicindex.org/docs/objections/yahoo.pdf (pointing out the need for larger quanta of data to
improve search technologies, for ―the very worst [search] algorithm at 10 million words is better than the
very best algorithm at 1 million words‖).
83
Amended GBS Agreement, supra note 37, §§ 1.93. Non-consumptive research is defined as ―research in
which computational analysis is performed on one or more books,‖ which includes image analysis or text
extraction, textual analysis or information extraction, linguistic analysis, and indexing and search. Terms
under which non-consumptive research can be performed are set forth, id. § 7.2(d).
84
See, e.g., Letter from Gregory Crane to Judge Chin in Support of the Settlement Agreement at 3, Authors
Guild, Inc. v. Google, Inc., No. 1:05 CV 8136 (DC) (S.D.N.Y. Aug. 8, 2009), available at
http://www.publicindex.org/docs/crane.pdf [―Crane Letter‖].
11
running searches across many books that might mention him. Linguists could discover
the origins of words, concepts, and principles, or learn new things about usage patterns
over time.85 Before GBS, only the deepest of scholars with prodigious memories of their
decades of experiences with books could appreciate the deep intertextuality of books.
With GBS, this intertextuality could become accessible to all. A digital corpus such as
GBS thus opens up opportunities to explore knowledge embodied in books in ways that
today can only be imagined.86
Several Stanford computer scientists, who wrote to Judge Chin in support of the
GBS settlement, waxed even more eloquent about GBS, predicting that it would bring
society to the verge of two major orders-of-magnitude changes in access to knowledge.87
First, information that once was available from research libraries in hours, weeks, or
months—or possibly not at all unless one could get to the Library of Congress—would
become available through GBS to end users in minutes, if not seconds. 88 This would be a
breakthrough not only in speed of access, but also in the breadth and location of access,
for any one could read these books from any Internet-connected place.89 These supporters
of GBS further predict a fundamental change in the quality of understanding and insight
by a new generation of students, which would represent another order-of-magnitude
change resulting from GBS.90
Although patrons of institutional GBS subscriptions will generally not be able to
get access to in-print books, lively competition can be expected among multiple sellers of
these books which should ensure that in-print books will also be broadly accessible,
whether in traditional print book form, in e-book form, or through print-on-demand
services. For the foreseeable future, libraries will continue to purchase individual copies
of in-print books that can then be lent to patrons.91
If the GBS institutional subscription base expands dramatically and network
effects kick in, publishers of in-print books may decide that it would be beneficial to
allow more display uses of them in the GBS corpus. GBS could thus become an essential
resource for anyone interested in acquiring the knowledge that is embodied in books.92
To facilitate this, Google is integrating GBS with other information resources, such as its
85
See Letter from Michael Heller to Judge Chin at 6 (advances in linguistic analysis possible through non-
consumptive research on the GBS corpus), Authors Guild, Inc. v. Google, Inc., No. 1:05 CV 8136 (DC)
(S.D.N.Y. Aug. 8, 2009), available at http://thepublicindex.org/docs/letters/Stanford%20Libraries.pdf.
86
With GBS, Crane says, ―[w]e are witnessing the emergence of a radically new, but deeply traditional
form of intellectual activity, as emerging technologies allow us to more fully realize our most basic goals of
advancing intellectual life.‖ Crane Letter, supra note 84, at 3.
87
Stanford Letter, supra note 13, at 2.
88
Id.
89
Id. This eloquent statement may be true for university researchers whose institutions subscribe to GBS,
but only those users who are physically present at public libraries will have access to GBS terminals. See
Settlement Agreement, supra note 3, § 4.8(a).
90
Stanford Letter, supra note 13, at 2.
91
Public libraries are now being charged more for e-books than individual customers are, even though they
typically pay the same price for hard-back books as individual consumers would. See.e.g.,Motoko Rich,
Libraries and Readers Wade Into Digital Lending, N.Y. TIMES, Oct. 14, 2009, at A1, available at,
http://www.nytimes.com/2009/10/15/books/15libraries.html. Lending of e-books is discussed infra notes xx
and accompanying texts.
92
This is, in fact, what some of Google‘s competitors worry about. By the time Congress does pass orphan
works legislation to allow those entities to compete with Google, Google‘s position may be so dominant
that another entity will be unable to establish itself. See Brief for Internet Archive, supra note 16, at 22.
12
new browser, email, and social networking tools. With this suite of resources, Google
will be a few steps closer to achieving the founders‘ aspiration to ―organize all of the
world‘s information.‖93
B. MORE PESSIMISTIC PREDICTIONS FOR THE FUTURE OF BOOKS IN CYBERSPACE
Although Google and other proponents of the GBS settlement have been
uniformly upbeat in public about the future of books in cyberspace if the GBS settlement
agreement is approved, many commentators are quite critical of the settlement and
pessimistic about its implications for the future of books. Among the pessimists are some
publishers, librarians, academic authors and researchers, professional writers, and those
with concerns that audacious class action settlements, such as GBS, are fundamentally
corrosive of democratic processes.
Most of the pessimistic assessments of GBS and the future of books can be found
in the briefs and letters filed with the court objecting, opposing, or expressing concerns
about the GBS settlement. Yet, even some publishers who support the GBS settlement
are profoundly worried about the future of books in cyberspace, with or without the
settlement. Although most of this section will discuss views of those who have been
critical of the settlement, it may be instructive to consider first the rather ominous
situation in which traditional book publishers presently find themselves.
1. Publisher Nightmares
Book publishing was a $40.3 billion business in 2008.94 This is substantial, of

course, but as Michael Healy, the incoming Executive Director of the BRR, has pointed
out, the book business in the U.S. is about the same size as the razor blade industry.95
Revenues from sales of print books went up slightly in 2008 as compared with 2007, but
unit sales went down.96 The industry thus only did somewhat better than the year before
because it raised prices. E-book revenues constituted only $53.5 million of the 2008 book
industry revenues, although this segment is growing.97 There was, however, a 13 percent
decline in sales of hard-cover books in 2008 and a further 15.5 percent decline in the first
half of 2009.98 There was also negative growth in 2008 in sales of adult and juvenile
trade books, as well as in sales of religious books.99 The trends for print books are not
promising.
93
Sergey Brin, , A Library to Last Forever, N.Y. TIMES, Oct. 8, 2009, at A31, available at,
http://www.nytimes.com/2009/10/09/opinion/09brin.html.
94
See, e.g., Michael Healy, Book Industry Study Group, Books and e-Books: Some Industry Numbers, for
the D is for Digitize Conference, New York Law School, Oct. 9, 2009, at 3-4. Healy reports there were
130,477 active publishers in 2008, that approximately 275,000 new titles were published that year, and that
there are approximately 6 million books that are commercially available in the U.S. Id. at 2.
95
Remarks of Michael Healy, I is for Industry session, D is for Digitize conference, New York Law
School, Oct. 9, 2009, video available at http://thepublicindex.org/documents/video-library.
96
Healy, supra note 95, at 7.
97
Id. at 16.
98
See, e.g., Randall Stross, Will Books Be Napsterized?, N.Y. Times, Oct. 4, 2009, at B4, available at
http://www.nytimes.com/2009/10/04/business/04digi.html. The recession of 2008-09 may have more
explanatory power for this decline than copyright infringement.
99
Healy, supra note 95, at 5.
13
The most frightening scenario of immediate concern to major trade publishers is
the ―Napsterization‖ of commercially valuable books.100 Although new e-books, such as
Dan Brown‘s The Lost Symbol, are available from Amazon.com for $9.99, it is also
possible to obtain such books for free through file storage sites, such as Rapid-Share and
Megaupload.101 The New York Times recently reported that 166 illegal copies of
Brown‘s new book are available on eleven different websites. 102 Expensive textbooks for
college courses are, moreover, being shared via peer-to-peer file-sharing networks.103
Napsterization is a phenomenon that mainly affects in-print books,104 so the GBS
settlement may not have much direct impact on this problematic future for digital books.
Yet, because GBS will allow consumers to get lawful access to millions of books, it may
alleviate somewhat the risk that users will go to file storage sites or engage in peer-to-
peer file-sharing when they want access to books.
Although GBS will bring them new revenues, publishers worry that GBS could be
―hacked‖ and all of the books therein, including the in-print books which are not
available for display uses could be ―liberated‖ by the hackers. The GBS settlement
agreement contains an extensive set of provisions specifying very strict security
requirements for Google and host sites of the GBS corpus to avert this potential
disaster.105
Another troublesome aspect of the future of books in cyberspace from the
standpoint of publishers is that consumers aren‘t willing to pay premium prices for digital
books. 106 The same book—The Lost Symbol, for instance—whose hard-back list price is
100
Stross, supra note 99, at B1.
101
Id. at B4. The presence of unauthorized copies of newly released titles on Internet sites or through peer-
to-peer file-sharing technologies is not, however, a new phenomenon. See DAVID A. BELL, THE BOOKLESS
FUTURE 213 (2005) (―The New York Times estimated recently that as many as 25,000 titles can be
downloaded [for free], including all the Harry Potter novels and The Da Vinci Code-but sales of the print
versions have not been hurt enough to make the publishing industry worry. Most book editors ... are not
even aware of the files' existence.‖), available at http://www.press.umich.edu/pdf/9780472031955-
ch19.pdf.
102
Stross, supra note 99, at B4. See also Mike Harvey, Pirates Find Easy New Pickings in Open Waters of
E-book Publishing THE TIMES, Nov. 21, 2009, available at
http://technology.timesonline.co.uk/tol/news/tech_and_web/article6925926.ece (reporting that The Lost
Symbol had been downloaded by illegal filesharers over 100,000 times within the first few days of its
release)
103
Expensive Books Inspire P2P Textbook Downloads, SLASHDOT, July 1, 2008, available at
http://news.slashdot.org/news/08/07/01/1838205.shtml. Several online sites provide information to
amateurs about how they could make their own book scanners. See, e.g., The Book Liberator Project,
available at http://www.bookliberator.com/doku.php; The Do-it-yourself Book Scanner Project, available at
http://diybookscanner.org/. See also Remarks of Daniel Reetz, founder of diybookscanner.org, Session on
C is for Culture, at the D is for Digitize Conference at New York Law School, on Oct. 9, 2009, available at
http://thepublicindex.org/documents/video-library.
104
Only a small percentage of in-print books are actually ―Napsterized.‖ Stross, supra note 99, at B4.
105
Amended GBS Agreement, supra note 37, § 8. There may be good reason to be worried about this, as
evidenced by the existence of applications to circumvent Google‘s security preventing users from
downloading full copies of books that are already available. See Bonnie Shucha, Google Book
Downloader, WISBLAWG, Sept. 10, 2009,
http://www.law.wisc.edu/blogs/wisblawg/2009/09/google_book_downloader.html.
106
Consumers are also less willing to pay higher prices for digital books because most e-books come with
technical restrictions and are not freely shareable with friends or resalable in the same way that print books
are. See Memorandum of Amicus Curiae Open Book Alliance as Amicus Curiae in Opposition to the
Proposed Settlement Between the Authors Guild, Inc., Association of American Publishers, Inc., et al. and
14
$29.95 is available for the Kindle for $9.99. While the lower digital price is
understandable in part because digital publishers do not have to pay printing, binding,
and distribution costs, there is a sense within the traditional book publishing industry that
prices of digital books need to be higher if their industry is to thrive, or possibly even to
survive.107 Lower digital prices have also put pressure on the prices of hard-cover
books.108 A price war broke out in 2009 between Amazon.com and Wal-Mart that will
lower prices even more—to $8.99—for best-selling books.109 This is not good news for
book publishers.
The new economics of digital publishing may help to explain why the five trade
publishers who initially sued Google for infringement may have come to perceive the
lawsuit as presenting an unusual opportunity to reshape the marketplace for books in
cyberspace and generate new revenues through a ―the magic trick‖ of a class action
settlement.110 The lion‘s share of these new revenues will go to book rights holders who,
more often than not, are likely to be publishers.111
Google will set prices for institutional subscriptions to out-of-print books in the
corpus in consultation with the BRR.112 Google plans to set prices for consumer
purchases of books in the cloud through an algorithm designed to optimize the market
returns for each book, although rights holders remain free to set their own prices for each
book.113
The pricing provisions of the GBS deal are an important part of the benefit that
the publisher-negotiators hope to get from the GBS deal. However, the DOJ raised
serious questions about provisions in the first iteration of the GBS settlement agreement.
Google Inc., at 4-5, No. 05 CV 8136-DC), (S.D.N.Y. Sept. 4, 2009) [―OBA Memo‖], available at
http://www.publicindex.org/docs/letters/open_book_alliance.pdf.
107
Id.
108
The list price for a hardback copy of Dan Brown‘s new book is $29.95, but this book is also available
from Amazon.com for $16.47. Consumers can also buy used copies of this book through Amazon.com
from $11.65. See Amazon.com: The Lost Symbol (9780385504255): Dan Brown: Books,
http://www.amazon.com/Lost-Symbol-Dan-Brown/dp/0385504255 (last visited Nov. 10, 2009).
109
See, e.g., Geoffrey Fowler & Miguel Bustillo, Wal-Mart, Amazon Gear Up for Holiday Battle, WALL
ST. J., Oct. 19, 2009, at B3, available at
http://www.wsj.com/article/SB10001424052748703816204574481272902910430.html.
110
Paul Courant, Librarian of the University of Michigan, characterized the class action settlement as a
―magic trick‖ during the Keynote Conversation at the D is for Digitize Conference at New York Law
School, Oct. 9, 2009. See Pamela Samuelson, The Google Book Settlement: Real Magic or a Trick?, Econ.
Voice, Nov. 2009, available at http://people.ischool.berkeley.edu/~pam/EconomistVoiceNov2009.pdf.
111
Publishers often get contractual assignments of copyright in books they have published which they are
likely to register either through the Google Partner Program or with the BRR. There is, however, case law
suggesting that authors, not publishers, have retained the right to authorize the commercialization of
electronic versions of their books. See Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490 (2d Cir.
2002) (treating authors as having retained rights to authorize the making and selling of e-books). Some
publishers, however, insist that the copyright assignments they got from authors give them the rights to
control e-book publications. See, e.g., Motoko Rich, Legal Battles Over E-Book Rights to Older Books,
N.Y. TIMES, Dec. 13, 2009, available at
http://www.nytimes.com/2009/12/13/business/media/13ebooks.html. One of the most important aspects of
the GBS settlement is Appendix A, which sets forth a revenue-sharing arrangement between authors and
publishers as to BRR-registered books. See Sag, supra note 31, at 46-56 (discussing the Author-Publisher
Procedures of the proposed GBS settlement).
112
Amended GBS Agreement, supra note 37, §§ 4.1(vi)-(viii), 4.2.
113
Id. at §§ 4.2(b), 4.2(c)(ii).
15
The algorithmic pricing regime proposed by Google, for instance, looked to DOJ like an
illegal price-fixing agreement.114 The amended settlement made some adjustments to the
pricing algorithm and now provides that Google‘s goal is to simulate the price of the
book in a competitive market.115 It remains to be seen whether DOJ will find the
amended pricing provisions to be acceptable.
Just when publishers thought the GBS deal was going to breathe new commercial
life into their backlists, the DOJ has let them know the deal may be challenged for
violating the antitrust laws (e.g., conspiring to fix prices and monopolize markets for
digital books). This could put them through years of costly litigation defending the GBS
deal.
While DOJ would likely seek a resolution that did not include sending the
negotiating publishers to jail, it could conceivably stop the deal altogether or force the
publishers and Google to make such dramatic changes to the GBS deal that it no longer
seemed as desirable to publishers as the first version was. If, for example, the DOJ
insisted that rights holders of unclaimed books (i.e., orphan books) should be excluded
from the settlement class because they cannot be given adequate notice of the settlement,
the GBS deal would be far less attractive to Google and the publishers.116 Insistence on
limiting the scope of the settlement to payouts for scanning books to make indexes and
providing snippets would likewise change the deal so substantially that the parties might
no longer want to pursue it.117
The GBS settlement could, of course, be disapproved for other reasons. The judge
might, for instance, not be persuaded that the GBS settlement satisfies Rule 23,118 which
sets forth the legal requirements for settling class action lawsuits. Disapproval could
happen because the proposed settlement class has too diverse a set of interests to be
certified, notice to class members was inadequate, the named plaintiffs did not fairly and
adequately represent the interests of the class as a whole, or the settlement is too broad in
scope and too future oriented to be approved.119 Some publishers whose interests diverge
substantially from those of the major trade publishers who negotiated the GBS deal have,
for example, objected to the deal as unfair to them.120 Support for the settlement among
publishers is, in general, more mixed than Judge Chin might infer from the relative
paucity of U.S. publisher objections to the settlement.121
114
DOJ Statement, supra note 46, at 21-22.
115
Amended GBS Agreement, supra note 37, §§ 4.2(b)(2), 4.2(c)(2).
116
The Internet Archive argued that orphan book rights holders should be excluded from the settlement
class. See Brief of Internet Archive, supra note 16, at 2 (―It is impossible to know if the ostensible class
representatives are typical of the entire class because it is impossible to know what orphan rights holders
would want or would perceive to be in their interests.‖).
117
See DOJ Statement, supra note 46, at 7 (suggesting that a settlement involving indexing and snippets
could conceivably satisfy class action requirements).
118
Federal Rules of Procedure, Rule 23.
119
See, e.g., Objection of Scott Gant, supra note 35 (raising numerous Rule 23 objections to the GBS
settlement).
120
See, e.g., Letter of American Law Institute, et al., to Judge Denny Chin, Authors Guild v. Google, Inc.,
Case No. 05 CV 8136 (DC), Sept. 1, 2009, available at http://thepublicindex.org/docs/letters/ali.pdf; Letter
of ProQuest, LLC to Judge Denny Chin, Authors Guild v. Google, Inc., Case No. 05 CV 8136 (DC), Sept.
4, 2009, available at http://thepublicindex.org/docs/objections/proquest.pdf.
121
Publishers Weekly conducted a survey of its readership in mid-July 2009 and found that just over half
supported the settlement. See Andrew Richard Albanese, Unsettled: The PW Survey on the Google Book
Settlement at 1, Publishers Weekly, Aug. 24, 2009.
16
Disapproval of the settlement could well bring about another publisher nightmare.
McGraw-Hill and its fellow plaintiffs cannot relish the prospect of either renewing
litigation against Google over whether scanning books for purposes of indexing their
contents is infringement, or dropping the litigation altogether because it would be too
expensive to carry on, too uncertain in outcome, and too demoralizing because of
widespread public support for Google, in general, and for GBS, in particular.
Most publishers today are probably too busy coping with the challenges of the
present to reflect very deeply on the future of their role in the book industry in the digital
era. This future may be far dimmer than many realize.122 In the past, publishers have
offered many important services. They selected manuscripts that could be targeted to
audiences that the publishers knew how to reach; they provided authors with advances to
help them complete the books; they provided editing, typesetting, book cover design,
printing, and advertising services.123 They also arranged for shipping books to
distribution outlets for book tours, for book reviews, and for other promotional materials
for their books. Because of their control over most of the value chain, publishers,
wholesalers and retail outlets have generally enjoyed much larger shares of the revenues
that books have generated than their authors have. But things are changing rapidly.
Publishers are both providing fewer services to authors and performing others (e.g.,
online promotion of books) less well than in the print era.
In the digital era, authors are in a better position than in the past to grow their own
audiences, cultivate reputations that attract readers, and provide their works to readers
through alternative distribution channels, such as the Kindle or GBS. Authors are already
being asked to perform the bulk of the copy-editing, formatting, and other tasks of book
preparation. Services, such as customer book ratings on Amazon.com, are helping to sell
books that depend less on publisher intermediation. Authors may well think they deserve
a better royalty stream than they have traditionally gotten from trade publishers.124
With the rise of Kindle, GBS and other new digital service providers, 125 authors
may find it attractive to cut out the traditional middle-man.126 The title of Ken Auletta‘s
new book on Google is apt. Traditional book publishers have been Googled; for them,
this may be The End of the World as We Know It.127 Traditional book publishing firms,
such as McGraw Hill, will not necessarily disappear, but they may be on life-support
from the revenues to they receive from Google for books they make available through
122
At least one respondent to the Publisher Weekly survey opined that the GBS deal ―will destroy the book
industry.‖ Id. at 1.
123
See, e.g., Eugene Volokh, The Future of Books Related to the Law?, 62 Mich. L. Rev. [18] (forthcoming
2010)(listing traditional functions of publishers, and pointing to the diminishing value from publishers).
124
See, e.g., Edward Hasbrouck, Google Books and Writers’ Rights: The Proposed Settlement of the
Google Books Lawsuit, Aug. 20, 2009, at 5 (book authors have typically gotten a 5-15% royalty from sales
of print books, but a much larger share of revenues from licensing subsidiary rights, most often 50%, which
should include licensing of e-book rights). See also Objection to Proposed Class Action Settlement On
Behalf of Author‘s Rights Class Member Ian Franckenstein, Aug. 13, 2009, at 5, available at
http://thepublicindex.org/docs/objections/franckenstein.pdf (noting that some e-publishers are paying rights
holders 80% of e-sales).
125
See, e.g., Smashwords is an online publisher of independent books, https://www.smashwords.com.
126
See, e.g.,Brad Stone & Motoko Rich, Top Author Shifts E-Book Rights to Amazon.com, N. Y. TIMES,
Dec. 15, 2009, available at http://www.nytimes.com/2009/12/15/technology/companies/15amazon.html.
127
AULETTA, supra note 17.
17
GBS.128 This is not a future scenario for books in cyberspace that traditional book
publishers can possibly be looking forward to.
2. Library and Academic Researcher Nightmares
Although library associations and academic authors and researchers

unquestionably welcome the far greater access to books that would come about if and
when the GBS settlement is approved, many have expressed serious concerns about the
risks that approval of the settlement will, over time, lead to price gouging for institutional
subscriptions.129 This would limit the ability of libraries to acquire new materials,
especially from independent publishers, and to serve well their core constituencies.
Two main factors underlie the concerns about price gouging. One is that there are
no meaningful constraints on price hikes in the proposed GBS settlement.130 The GBS
settlement agreement sets forth four criteria for the pricing of institutional subscriptions:
the number of books available, the quality of the scans, features offered as part of the
subscription, and prices of similar products and services available from third parties.131
The more books Google scans and the more features it adds to the subscription database,
the more justification it will have to raise prices.132 There are, moreover, no comparable
128
It is conceivable that these revenues will enable firms like McGraw Hill to become bankers to authors,
that is, entities that lend authors money to enable them to finish their books.
129
See, e.g, Library Association Comments on the Proposed Settlement, Authors Guild v. Google, Inc.,
Case No. 05 CV 8136 (DC), Sept. 9, 2009, available at
http://thepublicindex.org/docs/letters/ALA%20complete.pdf; Letter from members of the University of
California Academic Council to J. Michael McMahon, Office of the Clerk, Authors Guild, Inc. v. Google,
Inc., No. 05 CV 8136 (S.D.N.Y. Aug. 14, 2009), available at
http://thepublicindex.org/docs/letters/ucfaculty.pdf [―UC Academic Council Letter‖].
130
My letter to Judge Chin objecting to the GBS settlement on behalf of sixty five academic authors and
researchers suggested several ways that prices for institutional subscriptions might be constrained. See
Letter of Pamela Samuelson to Judge Denny Chin on behalf of academic authors at 3-4, Authors Guild, Inc.
v. Google, Inc., No. 05 CV 8136 (S.D.N.Y. Sept. 3, 2009), available at
http://thepublicindex.org/docs/letters/samuelson.pdf. Proponents of the GBS settlement regard the ―dual
objective‖ of the agreement as a constraint on price-gouging. See Settlement Agreement, supra note 3, §
4.1(a)(i) (setting forth the dual objectives of the settlement in respect of institutional subscriptions as , first,
realization of market returns for books being licensed through GBS, and second, the realization of broad
public access to books in the GBS corpus). My letter argues that this is too vague to be a meaningful
constraint on price-gouging. Samuelson Letter, supra, at 4.
131
Id. at 4.1 (a)(ii). The agreement contemplates pricing bands for different kinds of institutions, id. sec.
4.1(a)(iv). The core institutional subscription database (ISD)for licensing to higher educational institutions
will consist of all books eligible for such subscriptions (that is, all out-of-print books whose rights holders
have not opted to exclude their books from the ISD, plus any in-print books whose rights holders have
opted in to the ISD). Id., § 4.1(a)(v). The expectations of those who negotiated the settlement is that
approximately 95% of the books in the ISD will be out-of-print books. Conversation with Jan Constantine,
Aug. 5, 2009, New York City. Google also expects to develop some discipline-specific subsets of books in
the GBS corpus that might be licensed to corporations, governments, and the like. Settlement Agreement,
supra note 3, § 4.1(a)(v).
132
Google‘s license from the settlement class allows it to scan many books for GBS that may be wholly
lacking in scholarly or research significance (e.g., say, Harlequin romance novels). Google may also scan
duplicates of books already in the corpus. The settlement agreement seems to contemplate that price hikes
for institutional subscriptions can be based on the sheer number of books in the corpus. Prices for GBS
institutional subscriptions may thus go up based on the number of books as well as the number of services
available. Many such services may be developed by non-profit researchers who engaged in non-
18
products or services to the GBS institutional subscriptions,133 so this too will not serve as
a check on price hikes.
A second is that Google will have a de facto exclusive license to commercialize
all out-of-print books through the class action settlement; no one else can realistically
expect to obtain a comparably broad license to make out-of-print books available in the
current legal environment (e.g., in the absence of orphan works legislation that would
allow others to scan such books).134 This means that no other firm besides Google will be
able to offer institutional subscriptions of comparable breadth to be competitive with the
GBS subscriptions.135 The de facto monopoly that the settlement would confer on Google
is the source of its power to charge supracompetitive prices for institutional subscriptions.
The DOJ has expressed concern about the GBS settlement because of the potential
foreclosure of competition arising from this de facto exclusive license to Google.136
Although institutional subscriptions may be priced quite modest initially to attract
customers,137 academic authors are concerned that ―ten, twenty, thirty or more years from
now, when institutions have become ever more dependent on GBS subscriptions and
have consequently shed books from their physical collections, and indeed when
electronic publishing begins to supplant traditional methods of publication for some texts,
the temptation to raise prices to excessive levels will be very high.‖138 Another reason to
fear substantial price hikes is that Google cannot set institutional subscription prices
unilaterally. It must do so in consultation with the BRR,139 whose mission is to represent
rights holders who will almost certainly press for higher prices.
Ironically, the very future that may seem like nirvana to publishers—new
opportunities to obtain monopoly rents from out-of-print books through revenue-
maximizing pricing in collaboration with Google—may be a nightmare scenario for
libraries and academic researchers.140 The risks of price gouging for institutional
consumptive research using the GBS corpus. These researchers are forbidden from commercializing these
services without Google‘s and BRR‘s permission. See Amended GBS Agreement, supra note 37, § 7.2(d).
Yet, Google may well be able to include these services in the GBS institutional subscription corpus, which
would justify charging higher prices.
133
Samuelson Letter, supra note 131, at 3, n.6. The GBS settlement agreement contemplates that prices for
individual out-of-print books in the cloud will be between $1.99 and $29.99. See Settlement Agreement,
supra note 3, at § 4.2 (c)(i). Given this, it would be logical for institutional subscription prices for access to
the GBS database of these same books to be quite dear, even with a discount for bundling.
134
The GBS settlement agreement states that it is non-exclusive. Amended GBS Agreement, supra note
37, at § 2.4. However, no one else can get a comparably broad license to out-of-print books. DOJ urged
the settling parties to find a way to grant a similar license to third parties. DOJ Statement, supra note 46, at
25-26. Orphan works legislation is another way a comparable license could potentially be obtained.
135
See, e.g., James Grimmelmann, The Google Book Search Settlement: Ends, Means, and the Future of
Books at 10-11, April 2009, available at
http://works.bepress.com/cgi/viewcontent.cgi?article=1024&context=james_grimmelmann; Pamela
Samuelson, Why is the Antitrust Division Investigating the Google Book Search Settlement?, HUFF. POST,
Aug. 19, 2009, available at http://www.huffingtonpost.com/pamela-samuelson/why-is-the-antitrust-
divi_b_258997.html.
136
DOJ Statement of Interest, supra note 46, at 17.
137
Settlement Agreement, supra note 3, at § 4.1(a)(vi) (―The initial Pricing Strategy will also include a
discount from the List Prices that will be offered for a limited time to subscribers. This discount…is
designed to encourage potential customers to subscribe.‖).
138
Samuelson Letter, supra note 131, at 4.
139
Amended GBS Agreement, supra note 37, § 4.1(a)(4).
140
See, e.g., UC Academic Council Letter, supra note 130.
19
subscriptions are of particular urgency to university and other major research libraries
because they have experienced outrageously large price hikes in the pricing and bundling
of journals and other scholarly periodicals, especially those provided by for-profit
publishers.141 Some university libraries now pay more than $4 million a year to license
access to scholarly journals for their research communities.142 They have reason to fear
that institutional subscriptions to millions of books in the GBS corpus will, in time, prove
even more expensive.
Another reason that librarians are fearful about GBS subscriptions is that book-
rich institutions may succumb to the temptation to give away or sell off (―deaccession‖ is
the term of art for this practice) copies of physical books from their collections after years
of becoming comfortable with GBS subscriptions. Physical books may no longer seem to
be needed. If GBS subscriptions work as well as some hope, books may only be taking up
valuable real estate on college campuses and gathering dust.
As understandable as book deaccession might be, it would put libraries at the
mercy of Google in the pricing of institutional subscriptions, for they would no longer
have the institutional resources to enable patrons to shift back to reliance on local book
collections and those of institutions with which they have interlibrary loan
arrangements.143
Deaccession would also make it impossible for these institutions to scan their
collections to create an alternative corpus to GBS. Without books to scan, institutions
would be stuck with whatever prices Google and BRR had agreed to charge for GBS
institutional subscriptions.
Those who downplay the risk of price gouging suggest that Google‘s focus on
advertising revenues will avert this problem.144 This theory posits that Google will have
incentives to keep prices of subscriptions low so that ever larger numbers of people can
see the ads, which would presumably enhance ad revenues. Yet, those who negotiated the
GBS deal on behalf of authors and publishers do not expect that GBS will generate
141
See, e.g., Aaron S. Edlin & Daniel L. Rubinfeld, Exclusive or Efficient Pricing? The Big Deal Bundling
of Academic Journals, 72 ANTITRUST L. J. 119 (2004), available at http://ssrn.com/abstract=610103l
(noting, for example, that between 1984 and 2002, science journal prices increased almost 600%); Mark J.
McCabe, A Portfolio Model of Journal Pricing: Print v. Digital 7 (June 2003) (unpublished manuscript),
available at http://mccabe.people.si.umich.edu/PD.pdf .
142
Brief of American Library Association, et al. to Settlement Agreement at 9, Authors Guild, Inc. v.
Google, Inc., No. 05 CV 8136 (S.D.N.Y. May 12, 2009).
143
Once researchers get used to having access to digital books, they may, moreover, be unwilling to switch
back to print books. Habit, convenience, and market ecology may make this regression quite unlikely.
144
See, e.g., Elhauge, supra note 46, at 44, 50. See also Paul N. Courant, What’s at Stake in the Google
Book Search Settlement?, ECON. VOICE, Oct. 2009, available at http://www.bepress.com/ev/vol6/iss9/art7/.
Yet, Courant, who is the head librarian of the University of Michigan, was apparently concerned enough
about the risk of price gouging that he negotiated for an arbitration procedure to be established in an
agreement between the University of Michigan and Google that allows challenges of excessive institutional
subscription prices. See Michigan Agreement, supra note 29, Att. A, sec. 3. Prof. Elhauge argues that the
arbitration procedure will serve as a meaningful check on excessive pricing. Elhauge, supra note 46, at 49.
My letter to Judge Chin takes issue with this argument. See Samuelson Letter, supra note 131, at 5 (―The
procedure set forth for the pricing review is truly byzantine, even Kafkaesque, and is fraught with
complications and limitations. Even leaving aside the complexity and opacity of the proposed arbitration
procedure, the fundamental problem is that the Settlement Agreement has inadequate criteria for
meaningful limitations on price hikes. Because of this, we believe it is highly unlikely that the arbitration
procedure contemplated in the Michigan side agreement will prove to be more than a symbolic gesture.‖).
20
substantial ad revenues; in their view, ―the big money‖ is going to come from
institutional subscriptions.145 Additionally, Google‘s senior management has actively
been trying to expand the firm‘s revenue models;146 institutional subscriptions would
seem a promising source of such revenues. It is, moreover, far from clear that contents of
out-of-print scholarly books will be promising materials for serving ads to readers.147
Google spokesmen have also sometimes suggested that if institutional
subscription prices become too high for some to bear, those who want access to particular
books can always buy those books through the GBS consumer purchase model or get
access to preview uses that GBS will provide for open Internet searches.148 This may be a
feasible solution for some individual patrons, but purchases of books in the cloud are not
a realistic alternative at an institutional level to a subscription that would enable patrons
to access millions of books; nor will access up to 20 percent of GBS book contents
suffice for scholarly work. College and university libraries will likely need an
institutional subscription to GBS to be competitive with other institutions.
The vision that GBS will be an equalizer among higher education institutions may
be inspiring,149 but the reality may be quite different. Small, rural, and resource-
challenged colleges from states such as Indiana, West Virginia, or Mississippi will not be
eligible for as favorable a deal on institutional subscriptions to GBS as resource-rich
University of Michigan, which will get its subscription for free for twenty-five years.150
Michigan was able to get this deal because it provided Google with millions of books for
GBS scanning and because it was an early enthusiastic supporter of GBS.
Colleges and universities with much smaller book collections (most of which
Google may already have scanned from research libraries) that became Google library
partners much later than Michigan will have less to offer Google to qualify for deep
discounts. If Michigan and other book-rich, early GBS library partners are getting free or
heavily discounted prices for their subscriptions to GBS, book-poor and late-to-partner
institutions will likely pay a premium for their subscriptions to GBS. Ironically enough,
small and resource-poor schools would likely end up subsidizing resource-rich schools
like Michigan, turning Drummond‘s promise of equalization on its head.
That does not mean that small and resource-challenged institutions will have no
access to GBS. Nonprofit institutions of higher education, as well as public libraries, will
145
Telephone conversation with Michael Boni, lead lawyer for the Author Subclass, Aug. 12, 2009;
telephone conversation with John Sargent, a publisher-negotiator for Macmillan, Aug. 11, 2009.
146
Auletta, supra note 11, at xx.
147
Books on the history of Paris or Berlin may be promising materials for serving ads about hotels or
restaurants in those cities. However, many scholarly books from major research libraries may be too
arcane or esoteric in subject matter to generate ad revenues. Targeted advertising in higher education
settings may be viewed as unwelcome distractions from reading and research experiences.
148
Dan Clancy, Google‘s chief spokesman for the GBS project, made this assertion at a meeting with UC
Berkeley faculty members and librarians on June 22, 2009. Proponents of the settlement also argue that the
free library access terminal will be a check on excessive pricing. Elhauge, supra note 46, at 50-51.
However, demand for free terminal access is unlikely to suffice to fulfill demand for access to GBS either
at higher education institutions or at public libraries. Besides, print-out fees from these public access
terminals are an alternative way in which price gouging could occur.
149
See supra note 68 and accompanying text.
150
See, e.g., Jonathan Band, A Guide for the Perplexed, Part II: The Amended Google-Michigan
Agreement at 5-6, June 12, 2009, available at http://wo.ala.org/gbs/wp-content/uploads/2009/06/google-
michigan-amended.pdf.
21
be eligible for one or a small number of public access terminals through which the GBS
institutional subscription database can be accessed.151
Access to dedicated GBS public access terminals will be free; however, users of
the public access terminals at higher education and public libraries will be charged a fee
for every page of every GBS book that patrons print out, and this fee will go to BRR.152
At an August 28, 2009, conference about the Google Book Search settlement, Dan
Clancy, Google‘s chief spokesman for GBS, said that the settling parties‘ expectation was
that providing public access terminals would fuel demand for purchases of institutional
subscriptions.153 Buy-one-get-one-free is a tried-and-true marketing strategy; Google is
planning to use a variant (get one free first, and then buy the same thing to fulfill patron
demand) to induce these libraries to purchase institutional subscriptions.154
Another way that price gouging might come about is if Google decides to sell the
GBS institutional subscription database business to another firm. It might do this for one
of several reasons; it might, for example, decide to shift its corporate priorities in a
different direction or possibly become bored with GBS after the engineering challenges it
poses are surmounted. Institutional subscriptions would seem to require investments in
cultural stewardship and particularized customer support, which have thus far not been
Google‘s strong suit.155
The settlement agreement gives Google the unqualified right to sell the corpus to
anyone without getting consent from BRR or anyone else.156 Google would presumably
sell the institutional subscription part of GBS to the highest bidder (or risk a shareholder
lawsuit challenging it with neglecting responsibilities to its shareholders). One reason a
firm might bid on this asset is to maximize revenues, which could mean raising the prices
of institutional subscriptions.
Beyond price gouging, libraries and academic authors are and should be nervous
about the possibility that GBS institutional licenses and public access to GBS contents
151
Higher education institutions will be eligible for one public access terminal per so many enrolled
students, depending on which kind of institution it is. See Amended GBS Agreement, supra note 37, at §
4.8(a)(i)(1), (2). Public libraries will be eligible for one public access terminal per public library. Id., §
4.8(i)(3). The amended agreement provides BRR with authority to approve more than one such terminal
per public library. Id. Libraries must request these terminals from Google.
152
Settlement Agreement, supra note 3, § 4.8 (a)(ii). See infra notes xx and accompanying text for a
discussion of the fair use implications of this provision.
153
Remarks of Dan Clancy, Google Books Settlement and the Future of Information Access Conference,
UC Berkeley, Aug. 28, 2009, video available at
http://www.ischool.berkeley.edu/newsandevents/events/20090828googlebooksconference.
154
Public and private K-12 schools and their libraries are expected to be interested in institutional
subscriptions as well, although perhaps to a subset of the GBS corpus. There will be no free public access
terminals at these schools, although Internet-connected computers would be able to provide access to
preview uses of GBS books. Rights holders in these books can restrict the scope of preview uses to less
than 20% of the book and restrict access to specific parts. Settlement Agreement, supra note 3, at § 4.3.
155
See, e.g., Kevin Poulsen, Google’s Abandoned Library of 700 Million Titles, WIRED, Oct. 7, 2009,
available at http://www.wired.com/epicenter/2009/10/usenet/ (―[A] few geeks with long memories
remember the last time Google assembled a giant library that promised to rescue orphaned content for
future generations. And the tattered remnants of that online archive are a cautionary tale in what happens
when Google simply loses interest.‖) See also Remarks of Paul Duguid, Session on C is for Culture, D is
for Digitize Conference, New York Law School, Oct. 9, 2009, video available at (suggesting that Google
has not proven itself to be a good cultural steward as to GBS thus far because of pervasive metadata
problems with the corpus), video available at http://thepublicindex.org/documents/video-library.
156
Settlement Agreement, supra note 3, § 17.30.
22
could cease to be available. There are several ways in which this could occur. First, the
October 28 settlement agreement makes reference to a termination agreement, which the
settling parties are intending to keep secret, even from the court. 157 The negotiating
parties have thus acknowledged the possibility that GBS could be discontinued.
Second, technological glitches could cause GBS to go down, either temporarily or
permanently. Temporary outages have happened several times with Google‘s Gmail
servers, causing considerable disruption.158 Similar outages can be expected for GBS,
which would be highly disruptive to core activities of research communities. Hackers or
electronic terrorists may, moreover, consider GBS to be a challenging target for attacks.
Third, Google could also decide to stop providing institutional subscriptions, even
without terminating the agreement as a whole. While the Registry and Google‘s library
partners are entitled under the agreement to seek an alternate provider of institutional
subscriptions who would have the same obligations to BRR as Google had,159 they might
not be able to find another vendor willing to provide those services. There is no backup
plan if no third party comes forward. It would be desirable for participating libraries to
band together and pool their library digital copies to restore their ability to facilitate
access to books from the GBS corpus. The settlement agreement does not, however,
specifically provide for this. Shutting down GBS might cause Google to breach its
contractual obligations to its library partners, but it has limited this liability through
liquidated damages clauses.160
A fourth way in which GBS could cease to be available is if the Authors Guild v.
Google litigation goes forward, and Google ultimately loses the lawsuit. Many librarians
have invested hundreds of hours of work in negotiating deals with Google, arranging for
books to be sent off for scanning, and then reintegrating the books into the library upon
their return. If the GBS deal is not approved, not only will all the time, money, and
energy spent on cooperating with Google be wasted, but libraries, particularly private
institutions, have reason to worry that if litigation over GBS resumes, they could be at
risk of being held liable for contributory copyright infringement for materially aiding
Google by providing the books scanned for the GBS corpus. Although Google has
promised to indemnify them for liability to third parties, the risks of litigation weigh
heavily on libraries, especially those affiliated with private universities.161
The database of publicly accessible GBS books could also substantially shrink in
size and scope as a result of decisions by rights holder to exclude out-of-print books from
display uses, to insist that Google not scan their out-of-print books, or to demand removal
of books already scanned. Many publishers and some author groups have reportedly
asked Google not to scan their books for the GBS corpus or to exclude their books from
157
Id., art. XVI. The amended settlement agreement no longer makes any reference to the termination
agreement.
158
See, e.g., Ryan Singel, Gmail Down, Again—Update, WIRED, Sept. 1, 2009, available at
http://www.wired.com/epicenter/2009/09/gmail-down-again/.
159
Settlement Agreement, supra note 3, at § 7.2 (e)(ii).
160
See, e.g., Amended Michigan Agreement, term 32 (limiting Google‘s liability to Michigan to $3
million).
161
See, e.g., Andrew Richard Albanese, Deal or No Deal: What if the Google Settlement Fails?,
PUBLISHERS WEEKLY, May 25, 2009, http://www.publishersweekly.com/article/CA6660295.html (―Should
this deal fail, libraries could face legal exposure for their own digital library initiatives, and possibly for
their contributory role in Google's book-scanning efforts.‖). See supra note 29 (discussing the Eleventh
Amendment immunity that public universities would likely have from damage awards in a copyright case).
23
display uses; others have opted out of the GBS settlement.162 The more numerous are the
requests to exclude, the less likely it is that the public benefit that Google and proponents
of GBS have promised will materialize. The corpus of books eligible for GBS
institutional subscriptions and public access has already shrunk by about half because the
amended GBS settlement no longer includes non-Anglophone foreign books scanned
from major research library collections.163 Some librarians mourn this loss. 164
Poor quality scans and metadata may also limit significantly the utility of the GBS
for research communities. Linguist Geoff Nunberg has characterized GBS, in its current
form, as a ―disaster for scholars‖ because of pervasive errors in metadata (which are basic
data about the books, such as the name of the book, the name of the author, the year and
place of publication).165 GBS, for instance, yields 182 citations to Charles Dickens, for
instance, to books GBS says were published years before he was born.166 A search for
references to Internet before 1950 yields 527 GBS hits.167 Walt Whitman‘s ―Leaves of
Grass‖ is ―variously classified [in GBS] as Poetry, Juvenile Nonfiction, Fiction, Literary
Criticism, Biography & Autobiography, and, mystifyingly, Counterfeits and
Counterfeiting.‖168 This problem arises because Google has been using BISAC codes to
classify GBS books by type; publishers developed BISAC codes to instruct bookstores
about which section of the store should house their books.169
One reason Google may be using BISAC codes to classify books is to aid it in
determining what kinds of ads to serve to users of those books (e.g., airline promotions
against books classified as travel). While Google expects to serve ads for open Internet
searches that yield GBS book results, it is also contemplating serving ads to users of
books in the institutional subscription database to which college and university libraries
will be subscribing. This worries some academic researchers who consider ads to be
serious distractions from the scholarly enterprise, for they pose the risk of transforming
research libraries into shopping malls.170
3. Professional Author Nightmares
162
See, e.g., Motoko Rich, William Morris Advises Clients to Say No to Google Book Settlement, N.Y.
Times, Aug. 7, 2009, available at http://mediadecoder.blogs.nytimes.com/2009/08/07/william-morris-
advises-clients-to-say-no-to-google-settlement/. The DOJ Statement of Interest indicates that the parties
believed that the largest publishers would opt out of the GBS settlement and negotiate separate deals with
Google. DOJ Statement, supra note 46, at 10.
163
See, e.g., Brian Lavoie, et al., supra note 19, at 8 (estimating that half of the books in major research
libraries are foreign-language books).
164
See, e.g., Kenneth Crews, GBS 2.0: The New Google Book (Proposed) Settlement, Columbia
University Libraries, Copyright Advisory Office, Nov. 17, 2009, available at
http://copyright.columbia.edu/copyright/2009/11/17/gbs-20-the-new-google-books-proposed-settlement/
(―Because the settlement is now tightly limited [by the exclusion of foreign books], so will be the ISD
[Institutional Subscription Database]. The big and (probably) expensive database is no longer so
exciting‖).
165
Geoffrey Nunberg, Google’s Book Search: A Disaster for Scholars, CHRON. HIGHER EDUC., Aug. 31,
2009.
166
Id.
167
Id.
168
Id.
169
Id.
170
See Pamela Samuelson, Google Books Is Not a Library, HUFF. POST, Oct. 13, 2009, available at
http://www.huffingtonpost.com/pamela-samuelson/google-books-is-not-a-lib_b_317518.html.
24
Academic authors are likely to continue to write scholarly books, regardless of
what happens with GBS, as copyright incentives are not the main motivations for their
creative output. However, professional writers have distinctly mixed feelings about GBS.
Some are pleased at the prospect that their books, even if out-of-print for decades, may
once again attract readers as well as generate some revenues. Authors Guild spokesmen
have heralded the settlement as a tremendous benefit for authors.171 Yet, other
professional writers fear the consequences of their loss of control over uses Google will
make of their books. An author who has written a critique of stereotypes of women as sex
objects may, for example, be quite unhappy if Google runs ads next to her text that
promote the sale of sex toys or breast enhancement surgery.172
Some professional authors are upset about the low amounts—$60 per book, $15
per insert—that the settlement will provide to rights holders whose books have already
been scanned.173 Insofar as Google keeps prices of GBS institutional subscriptions low,
as some commentators predict, some authors worry that they will not be adequately
compensated for Google‘s commercial uses of their books.174 One set of objectors to the
settlement assert that rights holders should be paid for non-display uses made of their
books in the GBS corpus, particularly for the sale of AdWords from which Google
derives substantial revenues.175 They also complained about the unfairness of the $500
cap on payments to rights holders of inserts (e.g., short stories or essays in an edited
volume).176 The amended settlement agreement also seems to deprive U.S. authors of
inserts, such as book chapters, from any compensation for Google‘s commercialization of
their works unless the insert was separately registered with the U.S. Copyright Office. 177
171
See, e.g., Hearing, supra note 1, at 5 (testimony of Paul Aiken)
172
Nunberg, supra note 168 (―The 2003 edition of Susan Bordo's Unbearable Weight: Feminism, Western
Culture, and the Body (misdated 1899) is assigned to Health & Fitness—not a labeling you could imagine
coming from its publisher, the University of California Press, but one a classifier might come up with on
the basis of the title, like the Religion tag that Google assigns to a 2001 biography of Mae West that's
subtitled An Icon in Black and White or the Health & Fitness label on a 1962 number of the medievalist
journal Speculum”). See also Objections of Arlo Guthrie, et al., to Proposed Class Action Settlement
Agreement, Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136, (S.D.N.Y. Sept. 2, 2009) at 21, available
at http://thepublicindex.org/docs/objections/guthrie.pdf (expressing concern that advertising next to GBS
books may be offensive to authors and damaging to their reputations).
173
See, e.g., Bloom Objection, supra note 61, at 11. The settlement payments contrast sharply with the
$750 per infringed work minimum statutory damage that could be awarded if the matter went to trial. 17
U.S.C. § 504(c).
174
See, e.g., Gant Objection, supra note 35, at 28-29 (complaining about the inadequacy of GBS settlement
compensation). Others complained about the burdensomeness of claiming works and rampant errors in the
Google Books database. See, e.g., Objections of Harrasowitz, et al., Authors Guild, Inc. v. Google, Inc.,
No. 05 CV 8136, (S.D.N.Y. Aug. 31, 2009) at 19-20, available at
http://thepublicindex.org/docs/objections/harrassowitz.pdf.
175
Guthrie Objection, supra note 175, at 19.
176
Id. at 12.
177
See Kenneth Crews, Google Books: “Dude, Where’re My Inserts?,” Columbia University Library,
Copyright Advisory Office, Dec. 17, 2009, available at
http://copyright.columbia.edu/copyright/2009/12/17/google-books-dude-wherere-my-inserts/ (explaining
why it was plausible for insert authors to believe their inserts were in the settlement as long as the books in
which their works appeared were registered and how the amended agreement limited the insert author
subclass).
25
Some also worry that BRR will spend most of the revenues it gets from Google
on its own operations, leaving precious little for paying authors for commercial uses of
their works.178 Some have expressed concern about the deal that the Authors Guild cut
with publishers over revenue splits for books published before 1987.179 A good argument
can be made that authors who assigned their copyrights to publishers before that year
only assigned rights to print publications of their works, not to e-books.180 Yet, the GBS
settlement agreement would give publishers 35 percent of the revenues generated from
pre-1987 books.181 Some authors mourn the loss also of access to federal courts for
disputes over books in the GBS corpus,182 for the settlement agreement provides for
compulsory arbitration of all GBS-related disputes.183
4. Nightmares for Readers
Although members of the reading public will benefit from the greater access to
books that approval of the GBS settlement would bring, there are some reasons to be
concerned about the settlement‘s implications for readers. These include inadequate
guarantees of privacy protections, potential erosion of fair use and first sale rights, some
likelihood that books purchased through GBS will be priced at excessive levels, and
risks of censorship because the settlement authorizes Google to exclude books from GBS
for editorial reasons
The proposed GBS settlement calls for extensive monitoring of uses of individual
books, yet it says almost nothing about user privacy.184 One group of authors, including
Michael Chabon, Lawrence Ferlinghetti, and Jonathem Lethem, objected to the GBS
settlement because they feared that ―the lack of privacy protections in the current
settlement will deter readers‖ which would ―harm their expressive and financial interests
in sustaining and building a readership that browses, reviews, and purchases their
works,‖185 owing to the sensitive and controversial nature of their works.186
Although Google has announced that its general privacy policy will apply to
187
GBS, that policy currently allows Google to ―track a reader‘s past and present online
178
See, e.g., Lynn Chu, Google's Book Settlement Is a Ripoff for Authors, WALL ST. J., Mar. 28, 2009,
available at http://online.wsj.com/article/SB123819841868261921.html.
179
See, e.g., Bloom Objection, supra note 61, at 26.
180
See Random House, Inc. v. Rosetta Books L.L.C., 283 F.3d 490 (2d Cir. 2002) (authors had the right to
authorize e-book versions of their works because contracts to publish books only covered print books). But
see Rich, supra note 112 (reporting that publishers contest that authors own e-book rights).
181
Settlement Agreement, supra note 3, App. A, § 6.2(c)(i).
182
See, e.g., Bloom Objection, supra note 61, at 9.
183
Settlement Agreement, supra note 3, art. 9.
184
See, e.g., UC Academic Council Letter, supra note 130, at 5-6 (expressing concerns about lack of
privacy guarantees); Brief Amicus Curiae of the Center for Democracy and Technology in Support of
Approval of the Settlement and Protection of User Privacy, Authors Guild Inc. v. Google Inc., No. 1:05-
CV-8136 (S.D.N.Y. Sept. 4, 2009), available at http://thepublicindex.org/docs/letters/cdt_amicus.pdf.
185
Privacy Authors and Publishers‘ Objection to Proposed Settlement at 1, Authors Guild Inc. v. Google
Inc., No. 1:05-CV-8136 (S.D.N.Y. Sept. 4, 2009), available at
http://thepublicindex.org/objections/privacy_authors.pdf. They expressed concern that the audience for
their works ―will be severely diminished if people must wonder and worry if information about their
reading habits,
186
Id. at 3-4 (explaining the sensitive or controversial nature of the objecting authors‘ books).
187
See Google Privacy Policy, http://www.google.com/googlebooks/privacy.html.
26
actions and locations through some unstated combination of cookies, IP addresses,
referrer logs, and numerous distinguishing characteristics of a reader‘s hardware and
software.‖188 Tracking this data in respect of GBS would allow Google to know ―what
books are searched for, which are browsed (even if not purchased), what pages are
viewed of both browsed and purchased books, and how much time is spent on each
page.‖189 Google can aggregate that information with other information it has collected
about users of other Google products or services.190 Google can use this information for
purposes for which it has no user consent; it can also provide sensitive reader information
to government agents and third parties with interest in this sensitive data without a court
order.191 This may have a chilling effect on the willingness of users to read controversial
materials,192 and consequently, may diminish the ability of authors of controversial books
to earn money from them.
Fair use rights of readers may also diminish if the GBS settlement is approved.193
The settlement calls for readers to pay a fee for every page they print out from books
accessed via a GBS public access terminal.194 Photocopying the same pages from a book
taken off a library bookshelf would almost certainly be fair use.195 The GBS per-page-
print fee would thus override reader fair use rights. While this erosion of fair use is
troubling in its own right, it may be additionally troubling insofar as publishers treat it as
a ―precedent‖ for charging libraries per-page-copying fees more generally. Publishers
have been trying to control private study copying for several decades.196 The GBS
settlement may give them new ammunition for achieving this objective.
First sale rights may also erode as a result of the GBS settlement.197 Although
Google characterizes its plan to commercialize individual e-books as a ―consumer
purchase‖ model,198 this description is somewhat misleading. Purchasers of print books
have many first-sale-related freedoms with respect to their books that purchasers of GBS
e-books will not have. The former can lend their books to friends; the latter cannot. The
former can resell their books or give them away; GBS e-book purchasers can do neither.
188
Privacy Author Objection, supra note 188, at 8.
189
Id.
190
Id.
191
Id. at 13.
192
Id.
193
17 U.S.C. § 107. Four factors are typically used to decide whether an unauthorized reproduction of
some or all of a copyrighted work is fair and hence non-infringing: the purpose of the challenged use, the
nature of the copyrighted work, the amount and substantiality of the taking, and the harm the taking would
cause to the markets for the work. My letter to Judge Chin on behalf of academic authors expresses
concern on this point. Samuelson Letter, supra note 129, at 7.
194
Settlement Agreement, supra note 3, at § 4.8(a)(ii). Google will collect this fee from the libraries and
share these revenues with the BRR. Id.
195
See generally Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537, 2580-87 (2009).
196
See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d by an equally
divided court, 420 U.S. 376 (1974)(ruling that photocopying of scientific articles by libraries for
researchers was fair use); Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) (ruling that
photocopying of technical articles for research purposes at for-profit firm was unfair use)
197
Copyright owners are entitled to control the first sale of their works to the public, but the purchaser of a
copy of the work is generally free to lend, rent, sell, or otherwise transfer ownership of their copy of the
work. 17 U.S.C. § 109(a). See Samuelson, supra note 111, at 3 (raising the erosion of first sale rights
concern).
198
Settlement Agreement, supra note 3, at § 4.2.
27
Purchasers of print books can freely annotate their books and share their annotations with
friends or colleagues, unlike purchasers of GBS e-books. GBS e-book purchasers cannot,
in fact, even take possession of their books.199 The money they pay to Google will only
give them the right to access the books ―in the cloud,‖ that is, on Google servers. The
more apt description of the relationship between readers and GBS e-books they pay for is
a single-user access license model.
Avid readers will, of course, have a number of choices when purchasing in-print
books. Those who want to possess their books can buy hard copies or acquire e-books
for their Kindles; those that want to share their books with friends can buy hard copies or
e-books for Nooks. However, those who want e-books of out-of-print works may only
get them through the GBS consumer purchase model.200
Purchasers of GBS e-books also run the risk of paying prices substantially above
what would prevail in a competitive market. Although proponents of the GBS settlement
sometimes characterize out-of-print books as an insignificant part of the book market or
having little value,201 the proposed settlement agreement contemplates that Google will
use an algorithm to set prices for out-of-print books ranging from $1.99 to $29.99.202 The
agreement sets forth fixed percentages of books that will be assigned to each of twelve
pricing bins (e.g., 5% of the books will be sold for $1.99 and another 5% at $29.99).203
The average price at which Google intends to sell these e-books to consumers is,
however, $8.65.
Given that in-print e-books are currently selling for $9.99 (and sometimes less),
this average price is higher than one might expect for out-of-print books. It remains to be
seen whether the DOJ will object to the pricing bins and percentages as a form of illegal
price-fixing. Although Google apparently considers its proposed consumer purchase
model to be superior to other e-book systems because GBS books would be readable on
multiple devices,204 it is unclear that this justifies pricing so close to in-print e-book
199
Purchasers of GBS e-books can, however, digitally copy and paste up to 4 pages and print up to 20
pages at a time from their e-books. Id. at § 4.2(a). The pages will be watermarked and encrypted session
information would enable Google to determine what and who was copying or printing material from the
books. Id.
200
The GBS settlement agreement does, however, contemplate that Google and the BRR might agree in the
future to make out-of-print books available through pdf downloads or print-on-demand services. Id. at §
4.7.
201
See, e.g., Drummond Testimony, supra note 1, at 1, 6-7.
202
Settlement Agreement, supra note 3, at § 4.2(c)(i)(1). The agreement states that the goal of Google‘s
algorithmic pricing system is to approximate prices for books in a competitive market and to maximize
revenues for each book. Id. at § 4.2(c)(i)(2). It is difficult to square the goal of approximating market
pricing with a fixed percentage of books in each of the twelve pricing bins, and with twelve fixed bins,
some of which are $10 apart. James Grimmelmann has questioned the consistency of the goal of
competitive pricing and fixed price bins. See James Grimmelmann , GBS: A Question of Pricing Bins,
Dec. 16, 2009, available at Laboratorium.net. The settlement agreement does contemplate adjustment of
the pricing algorithm over time, as data about book sales becomes available.
203
Settlement Agreement, supra note 3, at § 4.2(c)(ii). The DOJ raised concerns about the algorithmic
pricing provisions of the GBS settlement in its September 2009 submission to Judge Chin, suggesting that
it would facilitate collusive pricing. DOJ Statement, supra note 46, at 21. The parties have made some
changes to the algorithmic pricing provisions to respond to this concern. See Amended GBS Agreement,
supra note 37, at § 4.2(c)(i), (c)(2). However, the bins and percentages per bin remain unchanged.
204
Drummond Testimony, supra note 1, at 2. Publisher John Sargent and Author-Subclass lawyer Michael
Boni who participated in negotiations that produced the GBS settlement agreement have expressed
28
prices, especially given some disadvantages of the GBS consumer purchase model (e.g.,
its dependence on Internet access and server availability).
The risk of censorship as to GBS books is an additional concern.205 The most
immediate source of this risk comes from rights holders who can ask for their books to be
removed from the GBS corpus or not to be scanned at all.206 GBS searches cannot be
conducted on removed books, even for purposes of letting a prospective reader know at
which library the removed book can be found. Google is not planning to make the list of
removed books available for public inspection.207
Google also has the right to exclude from GBS any book it chooses on either
editorial or non-editorial grounds.208 Google could, for example, decide to omit from
GBS books on controversial subjects under pressure from conservative groups or foreign
governments.209 If Google decides to exclude a book from GBS for editorial reasons, it
must notify BRR about its decision; BRR is authorized to seek a third party provider
through which to offer the book.210 BRR is not, however, obliged to do so. There is also
no guarantee an alternate provider would step forward. Google has the further power
under the settlement agreement to exclude up to 15 per cent of eligible books from the
institutional subscription database, consumer purchases, and preview uses.211 It need not
say which books were left out.
Even if most readers today have confidence that Google would not engage in
censorship, they should recognize that Google has bowed to foreign pressure before and
the firm might sell GBS to another firm in the future.212 That purchaser may be less
interested in wide-ranging freedom of expression values than Google and less reluctant to
use the censorship powers that the settlement agreement confers on Google.
5. Competition, Innovation, and Cultural Ecology Risks
skepticism about how viable the consumer purchase market for out-of-print books would be. Telephone
conversation with Michael Boni, Aug. 12, 2009, with John Sargent, Aug. 11, 2009.
205
See, e.g, Ryan Singel, Libraries Warn of Censorship, Privacy Cost in Google’s Digital Library,
WIRED, May 5, 2009, available at http://www.wired.com/epicenter/2009/05/libraries-warn-of-censorship-
privacy-cost-in-googles-digital-library/; Fred von Lohmann, Google Book Settlement 2.0: Evaluating
Censorship, Dec. 3, 2009, available at http://www.eff.org/deeplinks/2009/11/google-books-settlement-2-0-
evaluating-censorship.
206
Settlement Agreement, supra note 3, at § 3.5 (a). Von Lohmann, supra note 208 (pointing out that
authors, publishers, and other rights holders have sometimes sought to suppress protected works).
207
Id.
208
Settlement Agreement, supra note 3, at § 3.7(e).
209
Jonathan Band has predicted that Google, like public libraries all over the U.S., will likely ―find itself
under pressure from state and local governments or interest groups to censor books that discuss topics such
as alternative lifestyles or evolution.‖ Band, supra note 23, at 312. This is especially likely because
children will have access to GBS books at public libraries as well as in their homes. Unfortunately, ―if
Google bends to political pressure to remove a book, it will suppress access to the book throughout the
entire country.‖ Id. Band also pointed to examples of China, Thailand, and Turkey putting pressure on
Google to censor controversial materials. Id.
210
Settlement Agreement, supra note 3, at § 3.7(e)(i). Google can also alter the texts of books in GBS if it
has authorization to do so from the rights holder. Id. at § 3.10(c)(1). This raises the specter of revisionist
histories akin to those that George Orwell imagined in 1984. Von Lohmann, supra note 208.
211
Settlement Agreement, supra note 3, at § 7.2(e).
212
Id. at § 17.30.
29
Approval of the GBS settlement will have important implications for competition
and innovation in markets beyond the institutional subscription and consumer purchase
markets discussed above.213 Several companies believe that approval of the GBS
settlement would give Google an unfair competitive advantage over rivals in existing
markets and would stifle competition and innovation in other markets. Concerns have
also been expressed about the impacts of the settlement on the cultural ecology of the
information economy.
Yahoo! has opposed the GBS settlement because of the ―tremendous advantage‖
it would unfairly give Google ―in its core market: Google Search.‖ 214 Engineers who
develop and refine search algorithms are constantly striving to develop techniques to
improve the speed and quality of search results. One strategy for improving search
quality involves increasing the quantity of data the search engine can process. As Peter
Norvig, a Google engineer, has observed, ―the very worst [search] algorithm at 10 million
words is better than the very best algorithm at 1 million words;‖ he has also suggested
that ―rather than arguing about which [algorithm] is better or trying to discover a better
one, why not just go out and gather more data?‖215 The GBS database is just that: a vast
resource of additional data that Google can use to refine its search technologies and
further entrench its market dominance in the search market. Yahoo! regards Google‘s
data advantage from GBS to be unfair because Google would be obtaining its de facto
exclusive license to GBS books through a misuse of the class action procedure.216
The proposed settlement explicitly gives Google a license to make a wide range
of ―non-display‖ uses of books in the GBS corpus, a term which includes, but is not
restricted to, development and refinement of search technologies.217 Google expects to
develop a host of new products and services from its non-display uses of GBS books,218
including automated translation tools. The GBS corpus contains many books that have
been translated from its native language into one or more other languages; by comparing
the texts of the English and French versions of the same books, for instance, Google can
improve its ability to translate texts in these languages. No other profit-making firm will
213
George Dyson reported in his blog, The Edge, that he was told by his host for a 2005 talk at Google:
―‘We are not scanning all those books to be read by people…We are scanning them to be read by an AI
[artificial intelligence],‖ quoted in Guthrie Objection, supra note 175, Exhibit K to Declaration of Andrew
DeVore.
214
Yahoo! Objection, supra note 83, at 25.
215
Id (quoting Peter Norvig). See also Bill Schilit, Navigating the Network of Knowledge: Mining
Quotations from Massive Scale Digital Libraries of Books, PARC Forum, Sept. 4, 2008, video available at
http://www.parc.com/event/671/navigating-the-network-of-knowledge.html (discussing some results of
Google‘s nondisplay research on the GBS book database).
216
Yahoo! Objection, supra note 83, at 25. The tremendous advantage that GBS will give Google in search
is partly of concern because the long-term prospects for competition in search are, in the view of some, not
all that positive. See, e.g., Frank Pasquale, Seven Reasons to Doubt Competition in the General Serarch
Market, March 18, 3009, http://madisonian.net/2009/03/18/seven-reasons-to-doubt-competition-in-the-
general-search-engine-market/.
217
Amended GBS Agreement, supra note 37, at §§ 1.91, 3.3(a), 3.4(a).
218
One commentator has suggested that non-display uses of books in the GBS corpus ―will end up being
far more important than anything else in the agreement. Imagine the kinds of things that data mining all the
world‘s books might let Google‘s engineers build.‖ Fred von Lohmann, The Google Book Search
Settlement: A Reader’s Guide, Oct. 31, 2008, available at http://www.eff.org/deeplinks/2008/10/google-
books-settlement-readers-guide.
30
have access to GBS or a comparable database of books to make non-display uses that
would enable them to make competing translation tools.
Although the settlement agreement would allow ―qualified users‖ to engage in
non-consumptive research on the GBS research corpus at university host sites,219 this
term is defined so that only non-profit researchers are eligible to engage in this
activity.220 Qualified users can publish results of their work; they can also develop non-
commercial services (e.g., an index of books focused on certain geographical references)
derived from their non-consumptive research. However, they are forbidden from
developing commercial services with data derived from GBS without the express
permission from Google and the Registry.221 Qualified users are also prohibited from
using data extracted from GBS books to provide services that would compete with
Google or the books‘ rights holders.222
The most creative of the non-consumptive researchers may well have
opportunities to financially benefit from their innovations by going to work for Google,
but the settlement will preclude them from becoming next-generation entrepreneurs
capable of developing radically new information services arising from their non-
consumptive uses of the GBS corpus.
It would be logical for Google to incorporate information services developed by
non-consumptive research into Google products or services. 223 Insofar as this occurs, the
non-consumptive research provisions of the GBS deal may be valuable to Google by
allowing it to reap the commercial value of the research and development efforts of
leading university researchers.
Google will likely integrate GBS with other Google products and services, such
as its new Wave technology. Wave has been described as ―a real-time communication
and collaboration platform that incorporates several types of web technologies,‖ such as
email, instant messaging, wikis, document sharing, social networking, and other
services.224 Integration of GBS into this platform could make Google‘s platform much
more ―sticky‖ with users. This could make it difficult for other firms to compete
effectively with Google and raise entry barriers insofar as other firms would have to offer
comparable array of integrated products and services.
In this and other respects, GBS may contribute to what some deem an unfortunate
trend in the Web ecosystem. One prominent technology pundit recently observed that
―efforts by Google, Microsoft, Amazon, Apple, and other tech vendors—as well as
publishers like Rupert Murdoch's Dow Jones—to create closed communities around their
products and services are jeopardizing the freedom, and the spirit, of the Web. ‗It's no
219
Settlement Agreement, supra note 3, at § 7.2 (d)(xi). Nonconsumptive research uses of the GBS corpus
are discussed supra notes 83-90 and accompanying text.
220
Amended GBS Agreement, supra note 37, at §§ 1.123 (defining ―qualified user), 7.2(d)(2)(xi)(only
qualified users can engage in non-consumptive research).
221
Id. at § 7.2(d)(2)(viii).
222
Id. at § 7.2(d)(2)(ix).
223
The inclusion of non-consumptive research services into GBS institutional subscriptions could justify
increasing the prices of these subscriptions. See supra notes 131-32 and accompanying text.
224
See, e.g., Andres Ferrate, An Introduction to Google Wave—Google Wave: Up and Running,
Oreilly.com (2009), available at http://oreilly.com/web-development/excerpts/9780596806002/google-
wave-intro.html.
31
longer about the Internet as a platform,‘ said [Tim] O'Reilly. ‗It's Google as a platform,
it's Amazon as a platform, it's Microsoft as a platform,‘‖ 225
The architectures of the Internet and the World Wide Web have thus far been an
open ecosystem that has been highly generative of a wide range of unanticipated
innovations from diverse sources.226 Google is one of thousands of companies who have
built applications and features on top of these open architectures; its initial success has
depended on the openness of these environments. Yet, Google‘s commitment seems now
to be moving toward the walled garden model, and GBS seems to be a component of this
new strategy. 227 While this may be rankling in its own right, it rankles also because of the
taint of unfairness through which Google is getting its advantage with GBS through an
unprecedented use of the class action settlement process. A more open and competitive
ecosystem for digital books is possible, but it may not be achieved if the GBS settlement
is approved.
6. Abuse of Class Action Risks
Several firms oppose the GBS settlement on the ground that it represents an
improper use of the class action procedure to achieve what is quintessentially a legislative
restructuring copyright owner rights and remedies.228 Microsoft made this point vividly:
Following closed-door negotiations that excluded millions of copyright

owners and the very public that copyright serves, Google and the plaintiffs
seek to arrogate public policymaking to themselves, bypass Congress and
the free market, and force a sweeping ―joint venture‖—built on copyrights
owned by a largely absent class—via this Court‘s order. The proposed
settlement would usurp the role that Article I, Sec. 8 of the Constitution
vests in Congress alone.229
Amazon.com argues that courts are ill-equipped ―to balance and make adjustments
necessary to accommodate the many public interests at stake when a new technology
emerges that offers both the promise of public benefit and the danger of abuse of both
225
See, e.g., Paul McDougall, Web 2.0 Expo: O’Reilly Warns of Web War, INFO. WEEK, Nov. 17, 2009,
available at http://www.informationweek.com/news/internet/web2.0/showArticle.jhtml?articleID=221800396.
(reporting that a prominent technology pundit,
226
See JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET—AND HOW WE CAN STOP IT (2008).
227
See, e.g., Lawrence Lessig, Google Book Search Settlement: Static Good, Dynamic Bad, Harvard Law
School, July 30, 2009, video available at http://www.youtube.com/watch?v=Svytkew5qPI.
228
See, e.g., Objection of Amazon.com, Inc. to Proposed Settlement at 1-14, Authors Guild Inc. v. Google
Inc., No. 1:05-CV-8136 (S.D.N.Y. Sept. 1, 2009), available at
http://thepublicindex.org/docs/letters/amazon.pdf; Internet Archive Brief, supra note 16, at 11-21;
Objections of Microsoft Corp. to Proposed Settlement and Proposed Certification of Class and Sub-classes
at 1-5, Authors Guild Inc. v. Google Inc., No. 1:05-CV-8136 (S.D.N.Y. Sept. 8, 2009), available at
http://thepublicindex.org/docs/objections/microsoft.pdf.
229
Id. at 3. Only Congress has ―the constitutional authority and institutional capacity‖ to reorder copyright
owner rights, id., at 7, quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431
(1984).
32
copyright holders and consumers‖ as part of a fairness hearing on a class action
settlement.230
Congress is the proper branch of government to change copyright entitlements to
address new technology issues, which it has often done, sometimes as to issues that first
arose in class action litigations.231 Because Congress has been actively considering
legislation to make orphan works more widely available—a key objective of the GBS
settlement—Amazon.com asserts that the proposed GBS settlement should be
disapproved because it ―tilts the playing field by liberating Google (and Google alone)‖
from constraints in the orphan works legislation that Congress is most likely to enact. 232
Yet, some proponents of the GBS deal insist that the orphan works problem can only be
solved through a class action settlement.233
Diversity of interests among class members, the impossibility of discerning the
interests of orphan work rights holders or of notifying them of the settlement‘s terms,
inter-class conflicts, and the atypicality of the class representatives are among the specific
reasons to doubt whether the GBS class could or should be certified.234 Questions also
exist about whether this settlement should be approved given the stark contrast between
the narrow issue in litigation in the Authors Guild case—whether scanning books in order
to make short excerpts available in response to search queries is copyright
infringement—and the expansive and complex business arrangement that approval of the
settlement would establish.235 The settlement would, moreover, release Google from acts
of infringement in which it has not yet engaged (e.g., selling institutional subscriptions to
out-of-print books) which are different in kind from the infringement claim being
settled.236
Approval of the GBS settlement could also create a dangerous precedent that
would encourage class action lawyers to address important public policy questions by
bringing lawsuits that begin with a legitimate dispute over a specific issue, but are later
enlarged to transform the structure of affected industries and their markets. Imagine, for
example, that A&M Records brought a class action lawsuit against Napster for inducing
copyright infringement of sound recordings of music, and then negotiated a settlement
230
Amazon Objection, supra note 231, at 2.
231
Id. at 9-12; Microsoft Objections, supra note 231, at 8.
232
Amazon.com Objection, supra note 231, at 14-15.
233
See, e.g., Ashby Jones, The Google Books Settlement: A Lawsuit Ripe for Congress?, WALL ST. J., Nov.
17, 2009, available at http://blogs.wsj.com/law/2009/11/17/the-google-books-settlement-a-lawsuit-ripe-for-
congress/ (quoting Paul Aiken of the Authors Guild: ―You can‘t solve this problem without something like
a class action,,,,We weren‘t going to sit around and wait for a legislative solution.‖)
234
See, e.g., Internet Archive Brief, supra note 16, at 1-2, 11, 15-16. Microsoft pointed out that each of the
publisher subclass representatives had negotiated separate deals with Google for making their books
available through GBS and ―they all reportedly plan to exclude their books from the settlement terms that
most class members who lack the plaintiff publishers‘ knowledge, relationships, and sophistication will
have to live with in perpetuity,‖ which called into question the adequacy of their representation of the
subclass interests. Microsoft Objection, supra note 231, at 18.
235
Id. at 22 (using a class action settlement to launch a joint venture would abridge substantive rights in
violation of the Rules Enabling Act, 28 U.S.C. sec. 2072).
236
Amazon.com Objection, supra note 231, at 35-38. See, e.g.,Unisuper Ltd. v. News Corp., 898 A.2d
344, 347 (Del. Ch. 2006) (―A settlement can release claims that were not specifically asserted in an action,
but it can only release claims that are based on ‗the same identical factual predicate‘ or the ‗same set of
operative facts‘ as the underlying action. Thus, it follows that a release is overly broad if it releases claims
based on a set of operative facts that will occur in the future.‖)
33
with Napster that would make the latter the exclusive distributor of digital music, with
authorization to use an algorithm to set prices at which Napster would sell the songs and
determine revenue splits. Approval of such a settlement would have, among other things,
precluded Apple from introducing iTunes.
Approval of the settlement may also enable Google to have a substantial and
arguably unfair advantage in negotiating with owners of rights in copyrighted materials
other than books.237 Google could start scanning these works and claim to be interested
only in making snippets available; when challenged by rights holders, Google could say
to them: ―We could obviously litigate whether our scanning is copyright infringement,
and you could bring a class action lawsuit to challenge this, but why don‘t we make a
deal instead and save ourselves a lot of litigation costs and anguish?‖
Use of a class action settlement to restructure markets and to reallocate
intellectual property rights, particularly when it would give one firm a de facto monopoly
to commercialize millions of books, is arguably corrosive of fundamental tenets of our
democratic society.238
C. SUMMING UP
Proponents of the GBS settlement have painted a very rosy picture about the
many positive things that would happen if the GBS settlement was approved by the
federal courts. It is unquestionably true that the public would have more access to books
than ever before, and rights holders would have new opportunities to make money from
Google‘s commercialization of their books. Google‘s non-display uses of books in the
GBS corpus, as well as the non-consumptive research that university scholars and other
non-profit users would be able to undertake if the settlement is approved, would advance
knowledge and lead to development of new technologies, such as automated translation
tools, that will facilitate further advances. The GBS goal of expanding access to books
for print-disabled persons is laudable as well. There is, moreover, a pragmatic argument
that can be made in favor of the settlement, for it would ―cut the Gordian knot‖ of very
high transaction costs that would inhibit clearing rights necessary to digitize millions of
out-of-print books and make them available for institutional subscriptions and consumer
purchases.239
Notwithstanding the benefits, there are both substantive and procedural reasons to
question whether the GBS settlement will fulfill the lofty goals its proponents have
articulated, especially over the long run. Proponents of the settlement have sometimes
exaggerated its benefits and ignored or been dismissive of legitimate issues raised by
237
Google‘s founders want to organize all of the world‘s information. Brin, supra note 94. Not all of such
information can be found in books, so it is logical to wonder which copyright industry will be Google‘s
next target for its scanning projects. One logical possibility are the texts of academic journals, which have
much the same character as books. However, there are probably more revenues to be made if Google scans
sound recordings so that it can offer a music service to its sticky user base.
238
See, e.g., Amazon.com Objection, supra note 231, at 7, 14-15 (it is for Congress, not the courts, to
revise copyright law to respond to new technology issues).
239
See, e.g., Letter of American Library Association, et al. to William F. Cavanagh, Deputy Ass‘t Attorney
General of the U.S. Antitrust Division at 1, Dec. 15, 2009, available at
http://www.wo.ala.org/districtdispatch/wp-content/uploads/2009/12/AntitrustdivASA-FINAL1.pdf [―ALA
Letter‖].
34
critics of the settlement.240 There is more substantive merit in these criticisms than GBS
proponents have acknowledged. Of particular concern are risks of excessive pricing, the
lack of a backup plan if Google decides to discontinue GBS, and inadequate privacy
protections. It is, of course, too early to know whether any of the ―nightmares‖ that some
envision will come to pass over time. However, there are presently too few checks and
balances in the settlement agreement to protect the public‘s strong interests in this corpus
of books. Also of concern are the possible diminishment of competition in the book
market, the broad restructuring of rights and remedies available to copyright owners, and
the audacious effort to use class action procedures to accomplish a quintessentially
legislative objective. These concerns cannot be dismissed simply because some of them
have been articulated by Google‘s rivals, Amazon.com, Microsoft, and Yahoo!
GBS is, in short, a mixed bag. Some have called for measures to limit the risks
posed to the public and other interests. Library associations, for instance, have urged the
judge presiding over the fairness hearing to retain jurisdiction over the case and closely
supervise compliance with the settlement agreement provisions to guard against abuses,
particularly as to excessive pricing.241 Others have called for the court to order Google to
grant a compulsory license to the GBS corpus so that other firms could make use of it. 242
It is, however, far from clear that federal courts can or should approve of the deal on
antitrust or class action grounds. The next section considers what might happen to the
future of books in cyberspace if the GBS settlement is not approved, and why it would be
desirable to create an alternative research corpus of books that could serve as competition
for GBS as well as preserving our cultural heritage better than Google is likely to do.
III. OTHER POSSIBLE FUTURES FOR BOOKS IN CYBERSPACE
Regardless of whether the GBS settlement is or is not approved, several things are
clear: First, the market for digital books is growing, and its trajectory is strong.243
Amazon.com‘s Kindle, the Sony e-book reader, and Barnes & Noble‘s Nook are fueling
the market for digital books.244 These information appliances offer some useful features
240
When testifying before Congress, Authors Guild Executive Director Paul Aiken, for example, gave the
committee the impression that approval of the GBS settlement would make ―at least 10 million‖ books
available to the public. Aiken Statement, supra note 69, at 4. This is an exaggeration. Aiken was also
very dismissive of criticisms of the settlement. Id. at 6-9. And he failed to mention the print-out fee that
libraries will be charged for uses from public access terminals.
241
ALA Letter, supra note 242, at 2.
242
OBA Brief, supra note 107, at 26-31.
243
AAP reports that e-book sales reached $15.9 million in September 2009, a 170.7% increase over the
previous September, and 176.1% YTD increase. See Press Release, Association of American Publishers,
Book Publishing Sales Post Gains in September (Nov. 17, 2009) available at
http://www.publishers.org/main/PressCenter/Archicves/2009_November/BookPublishingSalesPostGainsin
September.htm. See also International Digital Publishing Forum, Wholesale eBook Sales Statistics,
http://www.idpf.org/doc_library/industrystats.htm (last visited Nov. 26, 2009) (reporting a 235% increase
for the third quarter of 2009).
244
See, e.g., David Pogue, Novel Now, But Not for Long, N.Y. TIMES, Nov. 25, 2009, available at
http://www.nytimes.com/2009/11/26/technology/personaltech/26pogue.html (noting that with the eReader
market heating up, ―e-books are evolving at a screaming pace‖); Adam Rose, Kindle Killers? The Boom in
New E-Readers, TIME, Oct. 11, 2009, available at
http://www.time.com/time/business/article/0,8599,1929387,00.html (discussing the booming eReader and
eBook market).
35
unavailable in print books (e.g., search functionality) and they make books much more
readily transportable than print books.245 These technologies will continue to improve,
and competition among the platforms is yielding benefits to the public.246
Second, the economics of digital publishing now make it commercially viable to
make sell books that have been out of print for some time because the web can ―match
geographically dispersed buyers to a product of their choice efficiently, in contrast to the
old distribution model based on storefronts.‖247 Individual out-of-print books may not be
all that valuable in isolation, but there is a growing recognition that bundles of them
might be quite valuable.248
Third, digitization of books has made it possible to serve ads that can be targeted
either to the individual user or to the book.249 This could create a lucrative new revenue
stream for rights holders as well as for intermediaries, such as Amazon.com or Google,
that stand between the publisher and book readers. Targeted ads may be a particularly
useful model for books stored ―in the cloud‖ (e.g., stored on servers), for new ads can be
generated every time the reader accesses the book.250
Fourth, digitized versions of public domain books are now widely available not
only from Google, but also from other sources, such as the Internet Archive. 251 Fifth,
libraries and other nonprofit educational institutions are likely to digitize more works in
their collections that they have reason to believe are or are likely to be in the public
domain or to be orphans. Sixth, amateurs will digitize too, sometimes for their own
personal uses, sometimes to share with friends, and sometimes to share with lots of
people, as through peer-to-peer file-sharing.252 The darknet is alive for books, as for other
types of content.253
245
See, e.g., Steven Levy, The Future of Reading, NEWSWEEK, Nov. 26, 2007, available at
http://www.newsweek.com/id/70983.
246
The Barnes & Noble Nook, for example, allows readers some ability to ―lend‖ their books to others. See
Jeffrey A. Trachtenberg & Geoffrey A. Fowler, B&N Reader Out Tuesday, WALL ST. J., Oct. 20, 2009,
available at http://online.wsj.com/article/SB10001424052748703816204574483790552304348.html.
247
OBA Memo supra note 107, at 4. Google, for instance, will have to make relatively few sales of out-of-
print books to recoup its costs of scanning and storing them on its servers as part of the GBS corpus. At an
average sales price of $6, with the BRR/Google revenue split, one commentator has estimated that Google
would need to sell only 41 copies to recoup its investment in digital publishing, whereas print publishers
require orders of magnitude more sales to make physical books available. See, e.g., Kent Fitch, Google
Book Settlement Doesn't Address the Hard Problem, LONG TERM MEMORY, Feb. 28, 2009,
http://ltmem.blogspot.com/2009/02/google-book-settlement-doesnt-address.html. Even if Google‘s costs
may be somewhat higher than this commentator suggests, the main point that digital publishing changes the
economics of publishing certainly stands.
248
OBA Memo, supra note 107, at 4-5.
249
See, e.g., Randal C. Picker, The Mediated Book, U. Chic. Law & Economics, Olin Working Paper No.
463 (May 5, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1399613.
250
Advertising is one of the three revenue models that the GBS settlement anticipates will be implemented
in GBS. Amended GBS Agreement, supra note 37, § 4.4.
251
See Internet Archive, http://www.archive.org/details/texts (last visited Nov. 10, 2009). See generally
List of Digital Library Projects, Wikipedia, http://en.wikipedia.org/wiki/List_of_digital_library_projects
(last visited Nov. 13, 2009) (providing links to dozens and dozens of book digitization projects).
252
See supra note 103 concerning the availability of amateur book scanning technology information.
253
See Harvey, supra note 101.
36
There is, moreover, a growing recognition that a digital corpus of millions of
searchable books from major research libraries is both desirable and achievable.254 GBS
has whetted the public‘s, as well as the scholarly communities‘, appetites for this kind of
information resource.255 Although approval of the GBS settlement will bring about
greater access to books sooner, I believe it is inevitable that a digital corpus of books
from major research libraries will be developed and made widely available to research
communities and to the public.
A. WHAT WOULD HAPPEN TO GBS IF THE SETTLEMENT IS REJECTED?
Disapproval of the GBS settlement is unlikely to cause Google to stop scanning

in-copyright books from the major research libraries with which it has contracted, and
growing the GBS corpus accordingly.256 The company has made too much of an
investment in the project to drop it, even if the settlement is not approved. If the
settlement is rejected, Google will likely continue to provide snippets of texts from GBS
in-copyright books as well as links to places from which it is possible to acquire the
books and to provide free downloadable copies of public domain books. Google would
also likely continue to make nondisplay uses of books in the corpus to improve its search
technologies, for which it would have a plausible fair use defense.257
Google will almost certainly continue to work with publishers of in-print books to
make these books available under terms mutually acceptable to Google and the publishers
under its partner program.258 Now that authors and publishers of out-of-print books are
more aware of the GBS project and familiar with its terms, more of them may wish to
sign up to make digital versions of their books available through the partner program.
Presumably this would mean that more out-of-print books would become available
through GBS on a voluntary basis. Those rights holders who do not want to participate in
a GBS initiative can ask for their books to be removed from the corpus, just as they could
if the settlement was approved, and presumably Google will honor those requests.259
GBS has fueled interest in institutional subscriptions to a corpus of digitized
books. Many authors and publishers of out-of-print books may well want to take part in a
254
See, e.g., GARY HALL, DIGITIZE THIS BOOK, THE POLITICS OF NEW MEDIA, OR WHY WE NEED OPEN
ACCESS NOW 4-5 (2008).
255
See e.g., Janet M. Baker et al., Research Developments and Directions in Speech Recognition and
Understanding, Part 1, IEEE SIGNAL PROCESSING MAGAZINE, at 79 (May 2009) (discussing how the
digitization of libraries could advance the ―state of the art in the automation of world language speech
understanding and proficiency‖).
256
An interesting article that compares the GBS settlement to the likely litigation outcomes is Sag, supra
note 31.
257
Non-display uses of the GBS corpus would likely result in advancing knowledge and/or in the creation
of new non-infringing works of authorship, such as new tools to aid in the translation of texts from one
language to another. They would be ―transformative‖ in the sense that courts have endorsed in recent
years. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 469 (1994). Non-display uses, by definition, do
not display any expression from works whose texts might be analyzed. Non-display uses are unlikely to
bring about any harm or potential harm to the market for the underlying works.
258
Google has announced its intent to launch an e-books service, Google Editions, in the first half of 2010,
through which it would make available half a million or so books. See, e.g., Jacqui Cheng, Google
Editions Aims to Bring eBooks to All Devices, ARS TECHNICA, Oct. 15, 2009, available at
http://arstechnica.com/media/news/2009/10/google-editions-aims-to-bring-e-books-to-all-devices.ars.
259
Amended GBS Agreement, supra note 37, at § 3.5.
37
subscription service. Google may well offer such a service, but others might be willing to
do the same if the settlement is not approved.260
Google has announced that it plans to work with Creative Commons so that rights
holders of books with open access preferences can be accommodated.261 Google is also
willing to work with rights holders of out-of-print books who want to dedicate their
books to the public domain.262 These initiatives should ensure that more books will be
available to the public, both through GBS and through other sites and services that foster
open access. Disapproval of the settlement would give Google incentives to partner with
libraries and other organizations to develop websites through which it would be possible
to share information about which books published between 1923 and 1964 are actually in
the public domain for failure to renew copyrights and which books are really orphans. 263
Disapproval of the GBS deal would likely precipitate renewed interest in orphan
works legislation.264 Google would certainly have stronger incentives to support such
legislation if the GBS settlement was rejected than if it was approved. It might also be
more likely to support free uses of true orphan works instead of paid uses of such books,
with funds escrowed for some years, as the Authors Guild and AAP seem to prefer.265
Congress is the more appropriate venue than the courts for addressing how to rescue
orphan works or under what conditions mass digitization of books should take place. A
societal benefit of Congressional action would be that Google would no longer be the
only firm that could make orphan books available.
As for the Authors Guild v. Google litigation, there are at least three options. One
is that the Guild and AAP could decide to drop their lawsuits against Google because of
the expense, the time it would take, and considerable uncertainty about the outcome. The
uncertainty exists not only as to Google‘s fair use defense, but also to the certifiability of
the class.266 Dozens of objections filed with the court in connection with the proposed
260
No matter what happens, Google will have a five year lead-time advantage over any other book
digitization project, as well as a set of contractual arrangements in place with libraries and publishers that
will be difficult for other digitizers to match. Second-comers will also have the challenge of figuring out
exactly which books are orphans, a problem that Google has sought to surmount through the settlement
terms that give it a broad license to commercialize all out-of-print books.
261
See, e.g., Xian Ke, Bringing the Power of Creative Commons to Google Books, available at
booksearch.blogspot.com/2009/08/bringing-power-of-creative-commons-to.html. See also Amended
Settlement Agreement, supra note 29, § 4.2(a)(i); Eric Steuer, Google Books Adds Creative Commons
License Options, CREATIVE COMMONS, Aug. 13 ,2009,
262
FAQ #58, FAQs - Google Book Settlement,
http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q43f (last visited Nov.
26, 2009). See also, UC Libraries, More on the Google Book Settlement, at 3, August 11, 2009, available
at http://osc.universityofcalifornia.edu/google/gbs_UC_libraries_doc.pdf.
263
Id. (explaining the desirability of such information sharing).
264
Orphan Works Act of 2008, H.R. 5889, 110 Cong. (2008); Shawn Bentley Orphan Works Act of 2008,
S. 2913, 110th Cong. (2008). Changes to these bills would need to be made to allow mass digitization akin
to GBS.
265
The Amended Settlement reflects an expectation that the Unclaimed Works Fiduciary might eventually
license orphan books to third parties. Amended GBS Agreement, supra note 37, at § 6.2(b)(i).
266
See, e.g., Samuelson Letter, supra note 131, at 2-3 (suggesting that academic authors would generally
consider scanning books for indexing purposes to be fair use in contrast to the Authors Guild whose lawsuit
asserts that such acts are not fair use). Different legal perspectives among class members have sometimes
resulted in dismissal of class action lawsuits. See Vulcan Golf LLC v. Google, Inc., 2008 U.S. Dist.
LEXIS 102819 (N.D. Ill. 2008) (denying certification of a class of trademark owners because the legal
38
GBS settlement suggest that authors, publishers and other rights holders have extremely
diverse interests and legal opinions; there is probably no one class of all rights holders
that can, in fact, be certified.
A second option is for the plaintiffs to press on with the litigation. Google could
ultimately win its fair use defense for scanning-to-index. This is a win that many
librarians and other researchers would greatly cheer.267 Alternatively, the plaintiffs could
press on with the litigation and win on the merits, albeit on behalf of a far smaller class.
Even so, the court would likely recognize the public benefit of the GBS corpus and order
that damages, rather than injunctive relief, should be awarded.268 It is unimaginable that
a court would order the GBS corpus to be destroyed, but it might well rule that Google
has to get the permission of rights holders before commercializing any books in the
corpus.
A third option, assuming disapproval of the GBS settlement, would be for the
parties to take the matter to Congress to resolve. Some critics of the GBS settlement have
argued that Congress, not the courts, is the most appropriate forum for addressing the
orphan works issue for books.269
B. BUILDING AN ALTERNATIVE RESEARCH CORPUS OF BOOKS
It would be socially desirable for there to be a digital corpus of twenty or so

million books from major research libraries that would be available through institutional
subscriptions at reasonable prices, which would be run by a consortium of nonprofit
educational institutions, not by Google or any other for-profit firm. This proposal would
be desirable regardless of whether the GBS settlement is approved or disapproved.
Development of this corpus should be publicly funded—a kind of Human
Genome Project-like initiative—and implemented by the major research libraries
themselves working in cooperation with one another.270 The knowledge embedded in
books of these research libraries are part of the cultural heritage of the humankind which
should be widely available and preserved for future generations. Research librarians
would be more likely than Google to care about the quality of the scans and about the
accuracy of the metadata which are essential if a research corpus is actually going to
serve well the research and educational communities for which it should principally be
claims of the named plaintiffs were not typical of members of the proposed class, some of whom would
have thought the challenged action was fair use)
267
Google‘s success with its fair use defense in the Authors Guild case would have emboldened libraries to
scan other materials in their collections that are not commercially available, at least for preservation and
other non-display purposes.
268
The U.S. Supreme Court has endorsed withholding injunctive relief in copyright cases based on public
interest factors. See, e.g., New York Times Co. v. Tasini, 533 U.S. 483, 505 (2001) (public interest in
access to historical record may justify withholding injunctive relief); Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 578 n. 10 (1994) (public interest in access to second-generation creations may justify
withholding injunctive relief in close fair use cases).
269
See Amazon Objection, supra note 231, at 14.
270
Harvard Librarian Robert Darnton has suggested nationalizing the GBS corpus and making it into ―a
truly public library.‖ Robert Darnton, Google and the New Digital Future at 6, N. Y. REV. OF BOOKS, Dec.
17, 2009. Or if that proved too ambitious, he proposes a mass digitization project funded by foundations
and economic stimulus funds. He estimates the cost of this project at $750 million and suggests that it
could be done over a period of 10 to 20 years. Id. at 6.
39
designed.271 This digital library should be built on open architecture principles, so that
improvements could be added from multiple sources over time.
The research corpus should be maintained on more than one institution‘s servers.
Redundancy is important to ensure that if servers at one host site go down, the corpus
will still be available from other host sites. In keeping with its historical role as a great
library of books, the Library of Congress would seem an appropriate site for one of the
repositories. Security measures to protect the corpus should be strong, as there is a risk
that it may be an attractive target for hackers.
The biggest hurdle to building such a digital repository of books, of course, is
copyright. Taking inspiration from GBS, I recommend that Congress allow mass
digitization of books from major research libraries. Participating libraries should be able
to use corpus for preservation and other legitimate library purposes, although no more
than snippets of the books‘ contents should be displayed unless the appropriate rights
holders have consented. Owners of copyrights in out-of-print books could be strongly
encouraged to make their books available in the research corpus for noncommercial
purposes. Congress should offer a tax credit for rights holders who dedicate their books
to the public domain or at least to noncommercial uses of the research corpus. Print-on-
demand or e-book purchases could still be within the rights holders‘ control. Inclusion of
a book in the research corpus might well attract readers who would often become paying
customers.272
Because most of the books in major research libraries were written by scholars for
scholars, and because open access has become a strong value within academic
communities, it should be possible for the research communities themselves to organize
in support of an open access corpus of books. Even those who have assigned copyrights
in books to their publishers should generally be able to make their books available on an
open access basis. Courts have held that assignments to publish works ―in book form‖
cover only the right to print physical books, not to control publication of electronic
versions.273 Even those who have explicitly assigned electronic rights to publishers will
be entitled, after a period of years, to terminate those transfers. 274 They too could be
encouraged or incented to make their scholarly books available on an open access basis.
Finally, many authors of scholarly books have contracts with publishers under which
copyrights revert to them if and when the book goes out-of-print. They too could make
their books available for open access use in the research corpus.
271
Darnton suggests that if libraries and archives scanned books for a truly digital library ―the job would be
done right , with none of the missing pages, botched images, faulty editions, omitted art work, censoring,
and misconceived cataloging that mar Google‘s enterprise.‖ Id. Library control over the corpus would also
ensure preservation ―because Google is not committed to maintaining its corpus.‖ Id.
272
It is reasonably common for research scholars to borrow books from libraries, and as they prove useful,
to buy a copy for longer term use. Many presses are recognizing that allowing the full text of their books to
be available online is compatible with selling copies of the books to people who prize them enough to want
to own them. Some publishers have come to recognize that online access can promote sales of books. The
National Academies Press, for instance, typically publishes online the texts of books of studies conducted
by the Academies which the Press also sells in print form. See David Pogue, Should e-Books be Copy-
Protected?, N.Y. TIMES, Dec. 17, 2009, available at
http://www.nytimes.com/2009/12/17/technology/personaltech/17pogue-email.html (reporting that sales of
Pogue‘s books increased when he made the books available without copy-protection).
273
See supra note 112.
274
17 U.S.C. §§ 203, 304(c).
40
It would be desirable for all researchers, whether from profit or nonprofit
institutions, to be eligible to make nondisplay uses of the research corpus and to develop
innovative new products and services that would interoperate with the research corpus.275
This would help to create a more open and competitive ecosystem for digital books. The
existence of this corpus and the ability to build on it may provide meaningful competition
to GBS.
Of course, there is more than the legacy of books already in research library
collections for which plans should be made.276 New books will obviously continue to be
published. The research corpus should accordingly grow to encompass new books of
interest to research communities. Copyright law currently requires rights holders to
deposit a copy of new works with the Library of Congress. 277 One of the two copies of
print books that rights holders must submit to the Copyright Office to obtain for a
registration certificate goes to the Congressional library.278 Once the proper infrastructure
was in place, it would be a simple thing to allow digital copies to be deposited with the
Library of Congress, perhaps as an alternative to deposit of print books.279
A committee formed by the coalition of research libraries responsible for
maintaining the digital research corpus could decide which books should be added to this
corpus, perhaps by purchasing a copy for the corpus. Some books not selected for the
research corpus might still be included in the collections of particular research libraries
for which the books might nonetheless be attractive because of special interests of their
institutions‘ researchers or the contributions the books would make to their specialized
collections.
Accommodation will also need to be made for new kinds of books, the creation of
which digital technologies will enable. Some are likely to be books of significance for
researchers. Harvard Librarian Robert Darnton has conceived the desirability of
multilayered historical works in digital form.280 The top layer might consist of a high
level narrative synopsis of the key findings or points to be made in the book, with deeper
layers of argumentation or analysis available to researchers who want to know more.
Another deeper layer might provide access to data or other sources that provide
documentation for points made in higher levels of the book. Digital convergence will
enable books to become multimedia works, in which video and audio files are embedded
275
The GBS settlement agreement restricts non-consumptive uses of books in the GBS corpus to non-profit
researchers and forbids them from commercializing products or services that they might create from uses of
the corpus. See Amended GBS Settlement, supra note 37, § 7.2.
276
GBS is backward-looking in that it focuses on books published on or before Jan. 5, 2009. Id. at § 1.13.
277
17 U.S.C. § 407(a). The Register of Copyrights has authority to exempt certain categories of works
(e.g., sculptures) from the deposit requirement. Id., § 407(c).
278
Id., § 407(b).
279
See, e.g., Frank Pasquale, Beyond Competition: Preparing for a Google Book Search Monopoly, Feb.
4, 2009, http://balkin.blogspot.com/2009/02/beyond-competition-preparing-for-google.html. (―A rational
copyright policy would have required digital deposit of all books granted copyright since digitization
became widespread. It would have put government in the position of providing a service like Google book
search, at least with respect to more current books. Just as Medicare provides a benchmark for private
insurers' actions, that Public Book Search could be both an alternative to and a model for Google--and
could learn from Google, too.‖); Peter S. Menell, Knowledge Access and Preservation Policy in the Digital
Age, 44 HOUS. L, REV. 1013 (2007). See also Peter Brantley, Books for a Digital Nation, June 16, 2008,
http://blogs.lib.berkeley.edu/shimenawa.php/2008/06/16/books_for_a_digital_nation.
280
DARNTON, supra note 14, at 79-102.
41
in texts, to attract younger readers who live in an image-rich world.281 Also in need of
curation and possible inclusion in a research corpus are scholarly books that are ―born
digital.‖282 Multivalent documents, which can be richly layered, are another digitally
enabled information resource which a digital library might include.283
Lending is a practice that has long been associated with libraries; indeed, it is an
emblematic activity as to libraries and books. Books have not only been available to be
read inside the walls of the library; they are also available for patrons of libraries to check
out, take home, and later return them. The freedom that libraries have to lend books they
purchased comes from the U.S. copyright rule that allows rights holders to control only
the first sale of a copy to the public. 284 The first sale rule has also insulated libraries to
some degree from higher prices that publishers might otherwise want to charge them for
books that may be lent to many people.285
Librarians believe that digital books should be as lendable as print books have
been.286 However, publishers have thus far been reluctant to accept that the first sale rule
applies to digital books.287 Someone who owns a Kindle that has been loaded with its
owner‘s favorite books can, of course, lend the Kindle itself to a friend. The friend can
then read one or more of the owner‘s books on that Kindle, but one cannot lend just one
book from a Kindle. Barnes & Noble has publicized the new lending feature of its new e-
book reader, the nook, but looking at the fine print, one learns that lending a book on a
nook can only be done one time and even then only if the publisher has allowed it.288
281
See, e.g., Terence O‘Brien, Hybrid Vooks Bring Video to Books, SWITCHED, Oct. 2, 2009, available at
http://www.switched.com/2009/10/02/hybrid-vooks-brings-video-to-books/.
282
DARNTON, supra note 14, at 52-55.
283
See Thomas A. Phelps & Robert Wilensky, Multivalent Documents, 43 COMM. ACM 83 (June 2000).
284
Lending books is explicitly permitted as a matter of copyright law under the ―first sale‖ rule of
copyright. 17 U.S.C. § 109(a). In some countries, however, public lending libraries must pay a fee based
on the library materials that have been lent. See, e.g., Council Directive 92/100/EEC of 19 November
1992 on rental and lending right and on certain rights related to copyright in the field of intellectual
property, 1992 O.J. (L 346) 61, art. 2(1), (3). See also JULIE E. COHEN, ET AL., COPYRIGHT IN A GLOBAL
INFORMATION ECONOMY 375-76 (2d Ed. 2006) (discussing the lending right).
285
See, e.g., Ann Bartow, Electrifying Copyright Norms and Making Cyberspace More Like a Book, 48
VILL. L. REV. 13, 111-12 (2003) (―Among its other advantages for libraries, the first sale doctrine helps
prevent price discrimination, because it allows those who buy a work at a low price to resell it to an entity
that otherwise may have been targeted for a high price. In other words, publishers cannot effectively tack
surcharges onto books they sell to libraries, even though those copies are likely to be read by more people
than copies sold to individuals, because libraries can ‗arbitrage‘ books from those who are able to purchase
them at lower prices. When the first sale doctrine is circumvented through contract provisions governing
licensing, reselling can be prevented (since there was never a ‗first sale‘ to engage the eponymous doctrine)
and libraries become vulnerable to price discrimination.‖).
286
See Rebecca Tushnet , My Library: Copyright and the Role of Institutions in a Peer-to-Peer World, 53
UCLA L. REV. 977 (2006) (discussing experiments by some libraries to facilitate lending of digital books).
287
See, e.g., Alicia Ryan, Contract, Copyright, and the Future of Digital Preservation, 10 B.U. J. SCI. &
TECH. L. 152, 158 (Winter 2004) (discussing licensing practices for digital materials). See also U.S.
COPYRIGHT OFFICE, DIGITAL MILLENNIUM COPYRIGHT ACT SECTION 104 REPORT (2001),
http://www.copyright.gov/reports/studies/dmca/dmca_executive.html (last visited Nov. 21, 2009)
(recommending against a ―digital first sale‖ amendment to the first sale provision).
288
Nook Features, eBook Reader, eReader, BARNES & NOBLE,
http://www.barnesandnoble.com/nook/features (last visited Nov. 26, 2009). However, administrators on
the B&N support forum have confirmed that purchasers may only lend the digital book a single time. See,
e.g., Posting of Kristine_S to eBooks Help Board – Barnes & Noble Book Clubs,
42
The Internet Archive has introduced a new book lending server system, which
aims to promote a digital lending system modeled on first sale-related concepts.289
Whether lending will become part of the GBS or an alternative research corpus remains
to be seen. The GBS institutional license envisioned may serve some of the same
purposes as lending as to out-of-print books in the corpus, in that patrons can access and
read them, but in-print books will generally not be available through institutional
licenses. Library patrons that want access to in-print books should have some
alternative—hopefully, through library lending—to the otherwise stark choice of paying
for the whole book or not being able to access it at all.290
CONCLUSION
Google has made two bold moves with GBS. The first was to undertake the scanning
of millions of books in order to index their contents, make snippets available to potential
readers, and make nondisplay uses to refine its search technologies. The second was to settle
the lawsuit brought against it charging the firm with copyright infringement so that Google
could commercialize most of the books it had scanned. At first blush, this seems like a win-
win-win, that is, a win for Google which would now be able to develop revenue models from
which to recoup its investment in GBS, a win for authors and publishers who would enjoy a
substantial share of the revenue stream generated from GBS books, and a win for the public
which would have increased free access to books, as well as opportunities to have even
greater access through subscriptions and purchases.
The second bold move has, however, proven to be far more controversial than the
first. Even those who follow developments in the publishing industry closely have expressed
reservations about it:
[W]as it ever reasonable to think that such a revolutionary, unprecedented

pact, negotiated in secret over three years by people with loose claims of
representation, concerning a wide range of stakeholders, both foreign and
domestic, involving murky issues of copyright and the rapidly unfolding
digital future, could be pushed through as a class action settlement within
a period of months, in the teeth of a historic media industry transition?291
http://bookclubs.barnesandnoble.com/t5/eBooks-Help-Board/Can-you-only-loan-a-book-once-and-once-
only/m-p/402346#M918 (Oct. 22, 2009, 15:39 PM).
289
See Internet Archive, A Future for Books—Bookserver, available at http://www.archive.org/bookserver
(last visted Nov. 21, 2009) (describing a new open architecture for vending and lending digital books over
the Internet). For a discussion of the Archive‘s Bookserver, see, e.g., Nancy Herther, Internet Archive
Dishes Up BookServer as Digital Books Market Heats Up, INFORMATION TODAY, Nov. 2, 2009,
http://newsbreaks.infotoday.com/NewsBreaks/Internet-Archive-Dishes-up-BookServer-as-Digital-Books-
Market-Heats-Up-57760.asp.
290
See, e.g., R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. REV.
577, 616 (2003) (―To some extent, new dissemination patterns may enhance affordability or availability,
producing similar, or perhaps greater, effects than the first sale doctrine has. In many other ways, however,
digital dissemination may reduce the doctrine's affordability and availability effects, forcing policymakers
and academics to consider whether the copyright system can find other mechanisms to promote
affordability and availability.‖).
291
Albanese, supra note 122, at 4.
43
This Article has shown that although there are some reasons to be optimistic
about the future of books in cyberspace if the GBS settlement is approved, there are even
more reasons to be worried about the settlement and its consequences for competition and
innovation down the line, as well as for sustained public access to knowledge, and to
doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.
The future of public access to the cultural heritage of humankind embodied in
books is too important to leave in the hands of one company and one registry that will
have a de facto monopoly over a huge corpus of digital books and rights in them.
Google has yet to accept that its creation of this substantial public good brings
with it public trust responsibilities that go well beyond its corporate slogan about not
being evil.
44

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Google Book Search and the Future of Books in Cyberspace

Electronic copy available at: http://ssrn.com/abstract=1535067

Electronic copy available at: http://ssrn.com/abstract=1535067

Librarians and academic researchers recognize that it is highly desirable to

Electronic copy available at: http://ssrn.com/abstract=1535067

II. THE FUTURE OF BOOKS IF THE GBS SETTLEMENT IS APPROVED

A. THE OPTIMISTIC PREDICTIONS

Google‘s General Counsel, David Drummond, painted a glowingly optimistic

B. MORE PESSIMISTIC PREDICTIONS FOR THE FUTURE OF BOOKS IN CYBERSPACE

Book publishing was a $40.3 billion business in 2008.94 This is substantial, of

2. Library and Academic Researcher Nightmares

Although library associations and academic authors and researchers

3. Professional Author Nightmares

4. Nightmares for Readers

5. Competition, Innovation, and Cultural Ecology Risks

6. Abuse of Class Action Risks

Following closed-door negotiations that excluded millions of copyright

III. OTHER POSSIBLE FUTURES FOR BOOKS IN CYBERSPACE

A. WHAT WOULD HAPPEN TO GBS IF THE SETTLEMENT IS REJECTED?

Disapproval of the GBS settlement is unlikely to cause Google to stop scanning

B. BUILDING AN ALTERNATIVE RESEARCH CORPUS OF BOOKS

It would be socially desirable for there to be a digital corpus of twenty or so

[W]as it ever reasonable to think that such a revolutionary, unprecedented

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