Legally Speaking: The Dead Souls of the Google Booksearch Settlement
Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, as well as a Director of the Berkeley Center for Law & Technology …
Context & Ripple Effects
Pamela Samuelson's guest post arrives at a moment when the Harvard library had already walked away from Google's book-scanning deal over settlement terms, making her Berkeley Center for Law & Technology critique part of a widening academic backlash rather than a lone voice.
The settlement machinery is also now live: Google opened its claims operation in February 2009 with a $60-per-book payment to authors whose works were scanned, which is precisely the mechanism Samuelson probes by asking what happens to rights holders nobody can find — the 'dead souls' her title names.
First-order effects
- Rights holders who fail to learn of or act on the settlement before its deadlines effectively cede commercial control of their out-of-print books to Google, turning unclaimed works into inventory for Google's digital bookstore.
- Google gets what no competitor has: an exclusive license structure over millions of scanned titles, validated through a court-approved class settlement rather than individual negotiations.
Second-order effects
- Academic institutions and libraries that partnered on scanning face a credibility test — Harvard's earlier withdrawal gives other university libraries a template for opting out if they share Samuelson's concerns about the terms.
- Legal scholars' objections raise the stakes for the court reviewing the settlement: critiques like this one feed the case for regulators and antitrust reviewers to treat the deal not as a private dispute resolved but as a market-structure question.
Third-order effects
- If court-approved class settlements become the standard route for mass-digitization disputes, whoever scans first acquires licensing power over works whose owners never surface — a structural incentive that reshapes how archives, publishers, and platforms negotiate digitization rights.
- The episode points toward heavier formal scrutiny of mega-settlements that convert orphaned intellectual property into single-company catalogs, with law schools and institutional partners functioning as an informal check on platform consolidation.
The trend: Mass book-digitization agreements are being contested less in the courtroom than through scholarly critique and institutional defection, as universities and legal academics push back on settlement terms that concentrate catalog control.