Google Books Settlement - An Antitrust Evaluation - Rejection Decision Needed a Deeper Analysis

The Google Books Search Project, especially the Library Project, created lots of buzz in the online books market. Though the project currently only displays snippets from the books scanned under the Library Project and provides information about availability of the searched book, the books rightsholders viewed scanning and saving of the entire books on Google's database as a violation of their copyrights. Following which two lawsuits were filed against the Library Project alleging copyrights violations and in reply Google argued the en-mass scanning as “fair use”. Later, the parties negotiated a settlement agreement for the alleged infringements. But the settlement itself raised several legal concerns and was mainly criticized over the use of Rule 23 class action mechanism, copyrights violations and antitrust violations. Despite the amendments made by the parties these concerns persisted. The biggest concern, which the proposed settlement agreement raised was over the orphan books whose rightsholders are unknown and the proposed settlement granted licensing rights to Google over these orphan books. In March, 2011, Judge Deny Chin rejected the proposed settlement agreement holding it to be beyond the scope of the litigation between the parties. However, the rejection decision of the proposed settlement did not include a detailed antitrust scrutiny and the scrutiny, which the decision includes, probably has missed some important antitrust jurisprudence for instance: a consumer welfare prescription. This paper keeping in mind the consumer welfare prescription under the antitrust law analyzes the antitrust objections raised by the proposed settlement agreement. And it is argued that a detailed antitrust enquiry by the district court could have added more weight in favor of the now rejected settlement