The GBS as a Benchmark

In a recent Forbes blog post, Washington Legal Foundation chief counsel Glenn Lammi points to the ongoing Google Book Settlement debate as a prime example of the government stepping in to check questionable online market behavior.

From the post:

DOJ’s inquiry into the Book Search suit settlement remains open, and Judge Chin has yet to rule on whether the settlement is “fair” to the parties.  His ruling, and DOJ’s possible actions in light of the outcome, will be highly instructive for those wishing to determine how government regulators will approach digital commercial behavior – especially by those with market power – in the future.

Lammi pulls highlights from the two Department of Justice filings sent to Judge Chin, noting that their actions helped send the initial deal back for revisions. Specifically, Lammi notes the DOJ’s concerns over Google’s ability to control the online book market if the GBS is approved.

Most importantly for the larger debate on online commerce and antitrust, DOJ expressed its strong concern that the new agreement did “nothing” on the “core issue” of “the ability of Google, and no other entity, to compete in a marketplace that the parties seek to create.”   The brief added, “There is no serious contention that Google’s competitors are likely to obtain comparable rights independently.”  To do so, competitors would have to copy books without publisher or author permission, and then hope a lawsuit (and its settlement) would follow.  Such an approach, DOJ wrote, “is poor public policy and not something the antitrust laws require a competitor to do.”

Clearly, the DOJ is right to be concerned about companies willfully ignoring copyright law as a business model.

That said, the scanning continues while we wait for Judge Chin to hand down his verdict.  By our count, the number of books in Google’s private library is now well into the millions and growing by more than 1,000 pages an hour.  We hope that number that will soon slow thanks to the DOJ’s measured intervention.