Estimating the economic impact of mass digitization projects on copyright holders: Evidence from the Google Book Search litigation

Journal of the Copyright Society of the U.S.A.

Volumn 57, Issue 4, 2010, Pages 907-949

  Travis, Hannibal ^a  

^a FLORIDA INTERNATIONAL UNIVERSITY   (United States)

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EID: 79959607099     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (278)

1. Objections of Microsoft Corp. to Proposed Settlement, at 5, Authors Guild, Inc., v. Google, Inc., No. 05 CV 8136-DC (S. D. N. Y. filed Sept. 1, 2009)
2. (quoting Robert Darnton, Google & the Future of Books, N. Y. REV. BOOKS, Feb. 12, 2009, http://www.nybooks.com/articles/22281).
3. Memorandum of the Federal Republic of Germany in Opposition to Proposed Settlement, at 14, Authors Guild, Inc., No. 05 CV 8136-DC (filed Sept. 1, 2009).
4. See, e.g., Plaintiffs' Complaint, at Prayer for Relief ¶ 3, McGraw-Hill Cos. v. Google Inc., No. 05 CV 8881 (S. D. N. Y. Oct. 19, 2005) (requesting: "An Order that requires Google to delete or otherwise destroy all unauthorized copies made by Google through the Google Library Project of any copyrighted works, whether in whole or in part, owned by Publishers (a) from any computers or Web servers owned by Google or that are under its control, or (b) that are otherwise in the possession of Google.");
5. Objections of the Japanese Publisher's Association on Book Distribution (Ryutaikyo), at 1, Authors Guild, Inc., No. 05 CV 8136-DC (filed June 5, 2009) (urging court to reject settlement of the GBS litigation, which could lead to a trial and injunction as requested by plaintiffs against GBS).
6. The relevant data are set forth in the annual reports of the most-affected publishers as filed with the SEC on Form 10-K for all publishers discussed except for Penguin. The data are available in the Appendix and the filings are available at the Web sites listed in the Appendix, as well as at http://www.secinfo.com.
7. See, e.g., Posting of Siva Vaidhyanathan to The Googlization of Everything (Dec. 1, 2007, 11:38 AM), http://www.googlizationofeverything.com/ 2007/12/tim-lee-reminds-us-of-the-none.php;
8. Charles Bremner, Nicholas Sarkozy Seeks to Fend Off Google's Threat to French Culture, TIMES (U. K.), Dec. 10, 2009, http://www.timesonline.co.uk/tol/ news/world/europe/article 6950972.ece?print=yes&randnum=1151003209000;
9. Mike Swift, Google's Desire to Scan Old Books Has Critics Casting It as Goliath, SAN JOSE MERCURY NEWS, NOV. 1, 2009, http://www.physorg.com/ newsl76738669.html;
10. see also Tim Brennan, The Proposed Google Book Settlement - Assessing Exclusionary Effects, GLOBAL COMP. POL'Y, Release Two, Oct. 2009, at 1;
11. James Grimmelmann, How to Fix the Google Book Search Settlement, J. INTERNET L. Apr. 2009, at 1, http://works.bepress.com/james-grimmel mann/23;
12. James Grimmelmann, The Google Book Search Settlement: Ends, Means, and the Future of Books, ACS ISSUE BRIEF (Apr. 2009), http://works.bepress.com/ james-grimmelmann/25;
13. Randal C. Picker, The Google Book Search Settlement: A New Orphan-Works Monopoly? 21 (July 2009) (John M. Olin Law and Economics Working Paper No. 462, University of Chicago Law School).
14. See, e.g., Sylvain Dejean, What Can We Learn from Empirical Studies About Piracy?, 55 CESIFO]ECON. STUD. 326 (2009);
15. Stan J. Liebowitz, Will MP3 Downloads Annihilate the Record Industry? The Evidence So Far, 15 ADVANCES IN THE STUD, OF ENTREPRENEURSHIP 229 (2004), http://www.emeraldinsight.com/Insight/viewContentItem.do;jsessionid=100BB67C46D 4316E9223CF24F140D524?contentType=Book&hdAction=lnkpdf&content Id=1783166;
16. Felix Oberholzer-Gee & Koleman Strumpf, File Sharing and Copyright, 10 INNOVATION POL'Y & THE ECON. 19 (2010).
17. See Brief of YouTube Inc. in Opposition to Viacom Int'l Inc.'s Motion for Summary Judgment, at 4-6
18. Viacom Int'l Inc. v. YouTube Inc., No. 07-CV-2103, available at http://www.google.com/press/youtube-viacom-documents.html;
19. Olga Kharif, Sour Musical Notes on YouTube, MySpace, BUS. WK., Sept. 18, 2006, http://www.businessweek.com/technology/content/sep2006/tc 20060918-148703.htm?campaign-id=rss-null.
20. See RANDALL E. STROSS, PLANET GOOGLE: ONE COMPANY'S AUDACIOUS PLAN TO ORGANIZE EVERYTHING WE KNOW 89-95 (2008).
21. See, e.g., id. at 63-89;
22. U. S. Patent No. 6, 285, 999 (issued 2001) (citing U. S. Patent No. 5, 832, 494 (issued 1998)
23. and Eugene Garfield, Citation Analysis as a Tool in Journal Evaluation, 178 SCI. 471 (1972)).
24. See Ben Bunnell, Google Book Search and Google Scholar, PowerPoint Presentation to American Library Association 2006 Annual Conf., min. 12:00, http://video.google.com/videoplay?docid=-8762514765927564293&ei=sZxkS 9GFJ6SGlgfJzOirCA&q=googlefook§earch&hl=en&view=3#.
25. See STROSS, supra note 8, at 231, 233.
26. Bunnell, supra note 10, min. 16:00.
27. See id.
28. See id. min. 14:00.
29. See id. min. 15:00.
30. See id. min. 10:00.
31. Dan Carnevale & Jeffrey R. Young, Publishers' Group Asks Google to Stop Scanning Copyrighted Works for 6 Months, CHRON. HIGHER ED., July 1, 2005, at 29.
32. Jeffrey R. Young, Publishing Groups Say Google's Book-Scanning Effort May Violate Copyrights, CHRON HIGHER ED., Feb. 18, 2005, at 35.
33. See Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?, 33 MIAMI L. REV. 601 (2006).
34. James Gleick, How to Publish Without Perishing, N. Y. TIMES, NOV. 30, 2008, at WK10;
35. see Objections of Open Content Alliance to Proposed Settlement, at 19, Authors Guild v. Google, Inc., No. 05 CV 8136 (S. D. N. Y. filed Sept. 4, 2009).
36. See Google Inc., Google Book Settlement FAQs § 29, http://www.googlebook settlement.com/help/bin/answer.py?answer=118704&hl=en.
37. See id.
38. See 17 U. S. C. § 106 (2006).
39. See Travis, supra note 19, passim. A related potential outcome might regard GBS as a de minimis infringement, like the capturing of a painting in the background of a television show, or a lifted riff incorporated into a larger musical tapestry, i.e. as a violation of copyright law inflicting minimal damages and unworthy of judicial intervention. See, e.g., Newton v. Diamond 388 F.3d 1189 (9th Cir. 2004) (discussing this option);
40. SHELDON W. HALPERN, COPYRIGHT LAW: PROTECTION OF ORIGINAL EXPRESSION 369 (2002) (same).
41. See Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988) (discussing this option);
42. MELVILLE NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 14.06[B], at 14-55-14-56.2 (2009) (similar).
43. See Google Book Settlement Summary Notice, http://www.googlebooksettle ment.eom/r/view-summary-notice (last visited Dec. 28, 2009).
44. See Proposed Settlement, at § 4.2 (b), Authors Guild, Inc. v. Google, Inc., No. 05 CV 8136 (S. D. N. Y. filed Oct. 28, 2008).
45. See Christopher Suarez, Proactive FTC/DOJ Intervention in the Google Book Search Settlement: Defending Our Public Values, Protecting Competition, at 14
46. N. Y. L. SCH. L. REV. - (2010), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1409824 ("If a user searches using GBS, locates a book, and then runs to the bookstore to purchase the printed book, this could be an instance where pure substitutability could be inferred."). Of course, one need not run to a bookstore in the age of Amazon. com and Half.com. And, as set forth below and in my prior works, there are many sources of eBooks other than GBS or Amazon.
47. See Objections of Open Content Alliance, supra note 20 at 24-25
48. (citing Timothy B. Lee, Publisher Speculates about Amazon/Google e-book "Duopoly", ARS TECHNICA (Feb. 23, 2009), http://arstechnia.com/tech- policy/news/2009/02/publisher-speculates-about-amazongoogle-e-book-duopoly.ar s);
49. id. at 25 (acknowledging that Amazon had book-scanning capability before Google);
50. see also Objections of Amazon. com to Proposed Settlement, at 1, Authors Guild, Inc., No. 05 CV 8136-DC (S. D. N. Y. objection filed Sept. 1, 2009) ("Amazon also brings a unique perspective to this Court because it has engaged in a book scanning project very similar to Google's, with one major distinction: As to books still subject to copyright protection, Amazon has only scanned those for which it could obtain permission to do so from the copyright holder. Amazon's scanning project has to date resulted in the lawful scanning of over 1 million English-language works and 3 million books in total.");
51. id. at 5 ("Today, Amazon has 3 million unique titles scanned and available worldwide to customers who wish to search inside those books and display the text surrounding the words they have queried. Amazon estimates that its book detail pages are viewed tens, if not hundreds, of millions of times each week.");
52. Objections of Microsoft Corp., supra note 1, at 6
53. (citing Lee, supra note 29;
54. id. at 3 ("Numerous entities - public (including the U. S. Copyright Office and Library of Congress), nonprofit (including the Internet Archive), educational (including leading universities) and commercial (including Google, Amazon, Yahoo and Microsoft) - have invested countless time and hundreds of millions of dollars in" efforts to "creat[e] universal and broadly accessible repositories of digital books").
55. See Objections of Microsoft Corp., supra note 1, at 3.
56. See Objections of Open Content Alliance to Proposed Settlement, supra note 20, at 19.
57. See id.
58. Plaintiffs' Complaint 1 33, McGraw-Hill Cos. v. Google Inc., No. 05 CV 8881 (S. D. N. Y. Oct. 19, 2005).
59. See also id. ("Each Publisher has already made quite clear to Google that none of its works should be included in the Google Library Project without permission, the Publishers are under no obligation to provide Google with any further information....").
60. See id.
61. See Bunnell, supra note 10, min. 10:00.
62. See, e.g., Plaintiffs' Complaint 1 33, McGraw-Hill Cos., No. 05 CV 8881;
63. Google, Inc., Google Book Search The Story, at 14 (Feb. 2007), available at http://www.google.co.uk/press/files/booksearch-en.pdf.
64. I estimate that at least 1, 500 titles from these four publishers may have been scanned and made available in "Snippet View" on GBS. For example, a search of GBS in June 2010 generates 346 titles from plaintiff Penguin published between 1940 and 1965, a period in which most titles published are now out-of-print and not part of the GBS Partner Program, as well as 600 from Simon & Schuster in that period, 159 from McGraw-Hill Education, and 530 from John Wiley & Sons, the vast majority of the books appearing in the results being displayed in "Snippet View" or "No Preview" due to their scanning from a library. See Google Inc., Google Books (2010), http://books.google.com/books?as-q=&num=10&btnG=Google+Search&as- epq=&as-oq=&as-eq=&as-brr=0&as-pt=ALLTYPES&lr&as-vt= &as-auth&a s-pub=penguin&as-sub=&as-drrb-is=b&as.-minm-is= 0&as-miny-is=1940 &as-maxm-is=0&as-maxy-is=1965&as-isbn=&as- issn=;
65. http://www.google.com/search?q=inpublisher:schuster&h1=en&tbs= bks:1,cdr:1,cd-min:1/1/1940,cd-max:12/31/1965&ei=zxkqTLPxK4O88gb84- DSCA&start=590&sa=Nu;
66. http://www.google.com/search?q=inpublisher%3Amcgraw-hill+inpublisher %3Aeducation&btnG=Search&hl=en&tbs=bks%3Al%2Ccdr%3Al%2C cd-min%3Al%2Fl%2F1940%2Ccd-max%3A12%2F31%2F1965&sa=2;
67. http://www.google.com/search?q=inpublisher:wiley+inpublisher:sons&hl= e n&tbs=bks:l, cdr:l, cd-min:l/l/1940, cd-max:12/31/1965&ei=uRoqTMClH8K B8gaU-PXRCA&start=520&sa=N. A similar search in spring 2010 for books published by plaintiff Penguin from 1940 to 1965, reveals nearly 183, 000 titles, with the entire first page of results (with one exception) being books displayed in "Snippet View" or "No Preview" due to their scanning from a library, without the prior permission of the publisher.
68. See Google Inc., Google Books (2010), http://books.google.com/books?as-q= &num=10&btnG=Google+Search&as-epq=&as-oq=&as-eq=&as-brr= 0&as-pt=ALLTYPES&lr=&as-vt=&as-auth=&as-pub= penguin&as-sub=&as-drrb-is=b&as-minm-is=0&as-miny-is= 1940&as-maxm-is=0&as-maxy-is=1965 &as-isbn=&as-issn=. Simon & Schuster from 1940 to 1965 reveals nearly 52, 000 titles, the entire first page of results being books displayed in "Snippet View" or "No Preview."
69. See Google Inc., Google Books (2010), http://books.google.com/books?as-q= &num=10&btnG=Google+Search&as-epq=&as-oq=&as-eq=&as-brr= 0&as-pt=ALLTYPES&lr=&as-vt=&as-auth=&as-pub= schuster&as-sub=&as-drrb-is=b&as-minm-is=0&as-miny-is=19 40&as-maxm-is=0&as-maxy-is=1965&as-isbn=&as-issn=. A similar search of GBS for books published by McGraw-Hill from 1940 to 1965 reveals nearly 34, 000 titles, with the entire first page of results being books displayed in "Snippet View" due to their scanning from a library.
70. See Google Inc., Google Books (2010), http://books.google.com/books?as-q= &num=10&btnG=Google+Search&as-epq=&as-oq=&as-eq=&as-brr= 0&as-pt=ALLTYPES&lr=&as-vt=&as-auth=&as-pub= mcgraw-hill&as-sub=&as-drrb-is=&as-minm-is=0&as-miny-is= 1940&as-maxm-is=0&as-maxy-is=1965&as-isbn=&as-issn=. Finally, a search of GBS for books published by plaintiff Wiley from 1940 to 1965 reveals nearly 17, 000 titles, with the entire first page of results being books displayed in "Snippet View" or "No Preview" due to their scanning from a library.
71. See Google Inc., Google Books (2010), http://books.google.com/books?as-q= &num=10&btnG=Google+Search&as-epq=&as-oq=&as-eq=&as-brr= 0&as-pt=ALLTYPES &lr=&as-vt=&as-auth=&as-pub=Wiley&as- sub=&as-drrb-is=b&as-min m-is=0&as-rniny-is=1940&as-maxm-is= 0&as-maxy-is=1965&as-isbn=&as-issn=.
72. See, e.g., Jason Epstein, Books@Google, N. Y. REV. OF BOOKS, Oct. 19, 2006, http://www.nybooks.com/articles/19436 (arguing that authors and publishers should follow Google's initiative to make sure "every book ever printed in whatever language will be available to everyone on earth with access to the Internet.");
73. Motoko Rich, Google Gives Out-of-Print Books a New Life Online, N. Y. TIMES, Jan. 5, 2009 ('"More students in small towns around America are going to have a lot more stuff at their fingertips', said Michael Keller, the university librarian at Stanford. 'That is really important.'");
74. id. (Sergey Brin, Google's co-founder and president of technology, argued that: "There is fantastic information in books. Often when I do a search, what is in a book is miles ahead of what I find on a Web site.").
75. See, e.g., Einer Elhauge, Why the Google Books Settlement is Procompetitive 32 (2009) (Harvard Law School John M. Olin Center for Law, Economics and Business Discussion Paper Series, Paper 629), http://lsr.nellco. org/harvard-olin/629 ("Making these out-of-print books searchable on Google vastly increases the ability of potential readers to identify and locate the books they want, dramatically increasing the output of these books.");
76. id. at 50 (arguing that a legal settlement of that will allow Google Book Search to continue operating "will provide a vast increase in the availability of human knowledge that is desirable for its own sake and promises to improve research to further advance knowledge.");
77. id. at 43 ("In addition to selling institutional subscriptions [to all out-of-print books and select in-print books whose rightsholders do not opt out], Google must provide free access to them at one terminal per public library, as well as at one terminal per 4, 000 students at two-year colleges, and one terminal per 10, 000 students at four-year colleges.");
78. Eric Fraser, Antitrust and the Google Books Settlement: The Problem of Simultaneity (2009), available at http://ssrn. com/abstract-id=1417722;
79. Mark Lemley, An Antitrust Assessment of the Google Book Search Settlement (2009), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id= 1431555;
80. Alexander Macgillivray, A Discussion Around the Google Book Search Settlement, Berkman Center for Internet & Society at Harvard University (July 21, 2009) (video) available at http://cyber.law.harvard.edu/events/ luncheon/2009/07/macgillivray.
81. See Gilbert Allardyce, Toward World History: American Historians and the Coming of the World History Course, 1 J. WORLD HIST. 23, 30 (1990) (describing how Universal Peace Congress of 1889 expressed concern that textbooks glorified war and contributed to hostility among peoples);
82. id. ("[A]fter the Second World War, British historian Ernest Barker, adviser to Unesco, concluded that historians too were responsible for the war and that the world now needed a united history as much as a United Nations.");
83. Bodo von Borries, The Third Reich in German History Textbooks Since 1945, 38 J. CONTEMP. HIST. 45 (2003) (discussing various strategies used in German textbooks to justify German people's participation in crimes against humanity affecting Jews, Slavs, and other victims prior to and during World War II);
84. Belinda Cooper & Taner Akcam, Turks, Armenians, and the "G-Word", 22 WORLD POL'Y J. No. 3 (2005), available at http://www.worldpolicy.org/journal/articles/wpj05-3/cooper.html (describing how Turkey's grade-school textbooks deny the Armenian genocide and justify the ethnic cleansing of the Greek population of Anatolia during and after World War I);
85. R. B. Jeans, Victims or Victimizes? Museums, Textbooks, and the War Debate in Contemporary Japan, 69 J. MIL. HIST. 149 (2005) (describing how Japanese right-wingers justify World War II-era leaders' crimes against humanity in China in fairly recent Japanese textbooks);
86. Sean Kay, From Sputnik to Minerva: Education and American National Security, DEFENSE HORIZONS, Jan. 2009, at 4-5 ("Even in societies that have governments allied with the United States, such as Saudi Arabia, official schoolbooks offer a range of ideological hatred of Christians, Jews, and Muslims who do not follow Wahabi doctrine. This... culminates in the 12th-grade text, which instructs students on religious obligations, including waging jihad against the infidel....");
87. id. ("Moreover, Saudi Arabia exports religious texts to Islamic schools around the world and directly runs academies in 19 international capitals.");
88. JAMES W. LOEWEN, LIES MY TEACHER TOLD ME: EVERYTHING YOUR AMERICAN HISTORY TEXTBOOK GOT WRONG 105-58 (1995) (describing how U. S. history textbooks justify and minimize crimes against humanity affecting enslaved and murdered Native Americans and African-Americans in particular);
89. HOWARD D. MEHLINGER, SCHOOL TEXTBOOKS: WEAPONS FOR THE COLD WAR, IN SCHOOL AND SOCIETY IN TSARIST AND SOVIET RUSSIA (B. Ekloff ed., 1992) (discussing how Soviet textbooks minimized crimes against humanity, including torture and deportation, committed against Ukrainians and Soviet dissidents);
90. EDWARD MARSDEN, THE SCHOOL TEXTBOOK: GEOGRAPHY, HISTORY, AND SOCIAL STUDIES 165-66 (2001) (U. N. Educational, Scientific, and Cultural Organization recognized in 1950 that school textbooks often taught harmful stereotypes and contributed to repeated outbreaks of world war in twentieth century).
91. For example, in Saudi Arabia and throughout the Middle East in the 1990s, journalists and media workers were frequently subjected to torture or murder for reporting the news. See, e.g., ANDERS JERICHOW, THE SAUDI FILE: PEOPLE, POWER, POLITICS 189 (1998).
92. See, e.g., Letter of United States Student Association in Support of Settlement, at 1-2 ("The settlement [of the Google Book Search copyright litigation] will dramatically expand access to millions of books through Google Book Search and other services that are enabled by the settlement. These services will have a transformative impact on research and scholarship, and will help level the educational playing field.");
93. id. at 2 (arguing that now "[s]chools big and small" will compete with Stanford for book holdings).
94. See id. at 2. The figure cited includes supplies, which are low for the median student but may contribute significantly to the average expenses per student due to the high costs of artistic and scientific supplies.
95. Letter of United States Student Association in Support of Settlement, at 1-2.
96. See, e.g., Objections of Amazon. com to Proposed Settlement, supra note 29, at 32 (arguing that those who contend that Google Book Search should not be enjoined from copyright infringement unjustifiably ignore the "detriment to social welfare caused by the reduction in incentives to innovate or create that would be caused if Google and, later, others are allowed to use the class action device to avoid complying with the law that prevents them from exploiting works that they have not licensed.").
97. Cf. Memorandum of the Federal Republic of Germany in Opposition to Proposed Settlement, supra note 2, at 20 ("It seems unfair that many German authors have to wait an uncertain, likely prolonged, period of time for compensation when everyone else who is profiting from the authors' endeavors [e.g., Google] get paid much sooner.");
98. Objections of Microsoft Corp. to Proposed Settlement, supra note 1, at 21 ("In addition, Google and the Registry 'may, over time, agree to new revenue models' without consent of copyright owners. No one can predict what new forms of infringement the proposed settlement would authorize.")
99. (citing Proposed Settlement § 4.7, Authors Guild, Inc., v. Google, Inc., No. 05 CV 8136-DC).
100. See, e.g., Objections of Microsoft Corp., supra note 1, at 5 ("A class action settlement is the wrong mechanism, this Court is the wrong venue, and monopolization is the wrong means to carry out the worthy goal of digitizing and increasing the accessibility of books.");
101. Objections of Open Content Alliance, supra note 20, at 22 ("The monopoly that Google can now almost grasp flows instead from misdirection to the company's competitors coupled with years of secret negotiations to form a cartel. The public now finds itself bereft of the protections competition provides.");
102. Memorandum of the Federal Republic of Germany in Opposition to Proposed Settlement, supra note 2, at 14 ("The proposed Settlement results in a de facto monopoly on information and an intensification of media concentration in Google. As a result, the right of free access to information as well as the existing cultural diversity in both Germany and Europe, will be usurped...");
103. id. at 15 (fullfeatured Google Book Search will "vest virtual monopoly power in a single private corporation");
104. Randall Picker, Antitrust and Innovation: Framing Baselines in the Google Book Search Settlement, GCP: ANTITRUST CHRON., Oct. 2009, at 6 (arguing that if a proposed settlement is approved absolving Google of liability for infringing copyrights in scanned books, "Google is likely to be the only firm offering a broad comprehensive offering in the near future even if the orphanworks license contemplated by the settlement is extended to other entrants. There is every reason to expect that Google will have market power in the institutional subscription market for some time.").
105. Cf. U. S. Dep't of Justice, Statement of Interest, Authors Guild, Inc., No. 05 CV 8136-DC (filed Sept. 18, 2009), available at http://www.usdoj.gov/atr/ cases/f250100/250180.pdf.
106. See, e.g., Letter of Academic Authors in Opposition to Settlement, at 2, Authors Guild, Inc., No. 05 CV 8136-DC (filed Sept. 3, 2009), available at http://thepublicindex.org/docs/letters/samuelson.pdf (arguing that legal settlement allowing full-featured Google Book Search to exist "will unquestionably bring about a significant expansion of access to knowledge in the near term", but "will effectively create two complementary monopolies that will control access to the largest digital library in the world.");
107. James Grimmelmann, How to Fix the Google Book Search Settlement, 12 J. INTERNET L. No. 10, Apr. 2009, at 1, http://works.bepress.com/james-grimmelmann/ 23 (arguing that a legal settlement of Google Book Search litigation "creates two new entities - the Books Rights Registry Leviathan and the Google Book Search Behemoth - with dangerously concentrated power over the publishing industry.");
108. James Grimmelmann, The Google Book Search Settlement: Ends, Means, and the Future of Books at 1, 6 (Apr. 2009) (American Constitution Society Paper) (arguing that full-featured Google Book Search threatens a "dangerous monopoly" because: "The settlement authorizes Google to start selling orphan works. That's good for the public to the extent it makes them available again, but potentially bad to the extent it turns Google into a dominant platform with control over a huge catalog of books that no one else has access to.").
109. See, e.g., JEAN NOEL JEANNENEY, GOOGLE AND THE MYTH OF UNIVERSAL KNOWLEDGE: A VIEW FROM EUROPE (2006).
110. As the Federal Republic of Germany argues: Under the Settlement, Google may exclude books from the available database at its own discretion. (Settlement, § 3.7 (e)). This effectively empowers Google to censor written content that may be considered politically or socially sensitive, thus limiting the public's meaningful access to the marketplace of ideas. This unfettered power would clearly be unconstitutional in the hands of the government and is questionable even in a state-sanctioned Settlement. Calling the Settlement non-exclusive is specious given the likelihood that little meaningful competition will be fostered because of Google's size, vast economic resources, and advanced head start aided by its unauthorized activity and the exclusive competitive advantages sanctioned by the Settlement.... Memorandum of the Federal Republic of Germany, supra note 2, at 16.
111. See 17 U. S. C. §§ 101, 504 (2006);
112. NIMMER & NIMMER, supra note 25, § 14.02.
113. Harper & Row, Publishers v. Nation Enters., Inc., 471 U. S. 539, 567 (1984).
114. See Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390, 406 (1940) (holding that infringer of copyright can escape paying its full profits as damages when it "can make a separation of the profits so as to assure to the injured party all that justly belongs to him").
115. See Harper & Row, 471 U. S. at 567-68;
116. Sony Corp. of Am v. Universal City Studios, Inc., 464 U. S., 417, 451 (1984);
117. id., at 484 & n. 36 (collecting cases) (dissenting opinion);
118. S. REP. NO. 93-983, at 65 (1974).
119. 480 F. Supp. 429 (CD. Cal. 1979)
120. aff'd in part and rev'd in part, 659 F.2d 963 (9th Cir. 1981)
121. rev'd, 464 U. S. 417 (1984).
122. See Sony, 464 U. S. at 452-54.
123. Id. at 454
124. (quoting district court opinion, 480 F. Supp. at 467).
125. Christina Bohannan, Copyright Harm, Foreseeability, and Fair Use, 85 WASH. U. L. REV. 969, 995-96 (2007).
126. Id.
127. See Perfect 10, Inc. v. Amazon. com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007) (digital use of plaintiff's photographs was lawful fair use where potential harm to plaintiff's market "remain[ed] hypothetical");
128. * 3-5 (CD. Cal. July 25. 2008) (denying plaintiffs motion for judgment of copyright infringement where "it is not clear that the [defendant's use] harms Plaintiff's copyright");
129. Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 638-39 (E. D. Pa. 2007) (unauthorized display of copies of plaintiff's Web site was lawful fair use where defendant was not a competitor of plaintiff and its use would be unlikely to reduce value of plaintiff's works);
130. A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912, 915 (N. D. Cal. 2000) (emphasizing, in the course of finding that uploading copyrighted songs was not lawful fair use, that given "the vast scale of Napster use among anonymous individuals, the court finds that downloading and uploading MP3 music files with the assistance of Napster are not private uses, and "the record company plaintiffs have demonstrated a meaningful likelihood that it would adversely affect their entry into the online market if it became widespread.")
131. aff'd in pertinent part, 239 F.3d 1004, 1016-17 (9th Cir. 2001);
132. Religious Tech. Ctr. v. F. A. C. T. NET, Inc., 901 F. Supp. 1519, 1521-26 (D. Colo. 1995) (posting of plaintiff's unpublished works on Internet was likely lawful fair use where: "[n]o evidence was introduced showing a likelihood that a follower of the Church would consider the postings by Lerma as a market substitute for the Works").
133. Cf. Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2d Cir. 2006) (holding, in course of finding fair use of plaintiffs images in defendant's book, that "[t]he fourth factor disfavors a finding of fair use only when the market is impaired because the... material serves the consumer as a substitute, or,... supersedes the use of the original")
134. (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1125 (1990)
135. and citing Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-20 (9th Cir. 2003));
136. Lenz v. Universal Music Corp., 94 U. S. P. Q.2d 1344, 1347 (N. D. Cal., Feb. 25, 2010) (alleged infringer who used music in YouTube video properly alleged bad faith claim of copyright infringement based on " 'self-evident non-infringing fair use");
137. Warren Publ'g Co. v. Spurlock, 645 F. Supp. 2d 402, 423, 426 (E. D. Pa. 2009) (finding that use of plaintiff's magazine cover in defendant's book was fair use because plaintiff's work "went out-of-print due to lack of demand", and plaintiff "failed to even exploit the copyrights in their entirety for the past several decades", and there was no evidence for plaintiff's contention that market for a derivative work was "usurped since the [parties' works] would show up together as results for likely-used keywords in an online bookstore search").
138. See Spectrum Sports, Inc. v. McQuillan, 506 U. S. 447, 458 (1993)
139. (defining offense of unreasonable restraint of trade under 15 U. S. C. § 2, as requiring evidence of harm to competition);
140. Brooke Group, Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 225 (1993)
141. (defining offense of price discrimination under 15 U. S. C. § 13 (a), as requiring evidence of harm to competition);
142. Assoc. Gen. Contractors of Calif. Inc. v. Calif. State Council of Carpenters, 459 U. S. 519, 542-43 (1983)
143. (plaintiff had no claim for restraint of trade under 15 U. S. C. § 1 where its harm or injury was speculative);
144. FTC v. Indiana Fed'n of Dentists, 476 U. S. 447, 460-61 (1986)
145. (defining offense of unreasonable restraint of trade under 15 U. S. C. § 1, as requiring either a presumption or direct evidence of harm to competition);
146. United States v. Microsoft Corp., 253 F.3d 34, 79, 96 (D. C. Cir. 2001) (en banc) (holding that deceptive statements and anticompetitive contracts could violate antitrust law because they harmed competitors and competition, but that Microsoft's development of a Java Virtual Machine did not absent evidence that it had "an anticompetitive effect that outweighs any procompetitive justification", and its tying of its Web browser to its Windows operating system did not "because plaintiffs failed to rebut Microsoft's proffered
147. Kinderstart.com, LLC v. Google, Inc., 2007 WL 831806, 2007-1 Trade Cases ¶ 75, 643 (N. D. Cal. Mar. 16, 2007) (defendant did not violate antitrust law where it did not cause harm to plaintiff of the sort that the antitrust laws were intended to prevent).
148. Coastal Fuels, 79 F.3d at 200
149. (citing HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE § 17.6b1 (1994)).
150. Godix Equip. Export Corp. v. Caterpillar, Inc., 948 F. Supp. 1570, 1583 n. 4 (S. D. Fla. 1996).
151. See Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 378-79 (1927) (four years);
152. Eiberger v. Sony Corp. of Am., 622 F.2d 1068 (2d Cir. 1980) (one year);
153. Malcolm v. Marathon Oil Co., 642 F.2d 845, 858 (5th Cir. 1981) (eight months);
154. Key Enters, of Del. v. Venice Hosp., Sammett Corp., 919 F.2d 1550 (11th Cir. 1990) (six months)
155. reh'g granted, 979 F.2d 806 (11th Cir. 1992)
156. appeal dismissed, 9 F.3d 893 (11th Cir. 1993);
157. Pierce v. Ramsey Winch Co., 753 F.2d 416, 439-40 (5th Cir. 1985) (one month).
158. Bigelow v. RKO Radio Pictures, 327 U. S. 251, 264 (1946).
159. 56 F.3d 452 (3rd Cir. 1998).
160. Id. at 487.
161. See id. at 486-87.
162. Id. at 486 n. 22
163. (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100
164. S. Ct. 1562 (1969)).
165. National Farmers' Org., Inc. v. Associated Milk Producers, Inc., 850 F.2d 1286 (8th Cir. 1988).
166. Coastal Fuels Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 200 (1st Cir. 1996)
167. (citing HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE § 17.6b2 (1994)).
168. Home Placement Serv., Inc. v. Providence Journal Co., 819 F.2d 1199, 1205-06 (1st Cir. 1987).
169. Id. at 1206.
170. Id.
171. See, e.g., Vernon v. Southern Cal. Edison Co., 955 F.2d 1361, 1372 (9th Cir. 1992) (firm could not claim damages from lawful refusals to deal, or other "acts which were not antitrust violations");
172. William Inglis & Sons Baking Co. v. Continental Baking Co., Inc., 942 F.2d 1332, 1341 (9th Cir. 1991) (firm could not recover damages for lost profits caused by increased costs of raw materials, vigorous lawful competition, or changes in consumer tastes);
173. U. S. Football League v. Nat'l Football League, 842 F.2d 1335, 1377 (2d Cir. 1988) (holding that jury "could award no damages or one dollar in damages if they found that they could not 'separate out the amount of losses caused by [NFL misconduct] from the amount caused by other factors, including perfectly lawful competitive acts and including business decisions made by the [USFL] or the [USFL's] own mismanagement'");
174. Farley Transp. Co., Inc. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1352 (9th Cir. 1985) (holding that plaintiff's "utter failure to make any segregation between damages attributable to lawful competition and that attributable to the unlawful scheme... requires reversal of the verdict and remand for a new trial on the amount of damages");
175. Litton Sys., Inc. v. AT&T, 700 F.2d 785, 825 (2d Cir. 1983) (declaring that "damage studies are inadequate when only some of the conduct complained of is found to be wrongful and the damage study cannot be disaggregated");
176. Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1352-53 (3d Cir. 1975) (holding that "we cannot permit a jury to speculate concerning the amount of losses resulting from unlawful, as opposed to lawful, competition. ").
177. 395 U. S. 100 (1969).
178. See id. at 116, 124-25.
179. Id. at 116.
180. Id. at 116 n. 11.
181. See, e.g., Dolphin Tours, Inc. v. Pacifico Creative Serv., Inc., 773 F.2d 1506, 1511 (9th Cir. 1985).
182. See Conwood Co., L. P. v. U. S. Tobacco Co., 290 F.3d 768, 793 (6th Cir. 2002);
183. * 6 (W. D. Pa. Oct. 13, 1998).
184. See Daniel Rubenfeld, Reference Guide on Multiple Regression, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 194 (2000);
185. David H. Kaye & David A. Freedman, Reference Guide on Statistics, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 124 (2000).
186. See Paul Krugman, The Big Zero, N. Y. TIMES, Dec. 28, 2009, at A27, available at http://www.nytimes.com/2009/12/28/opinion/28krugman. html?-r=l&ref=opinion ("Actually, even at the height of the alleged 'Bush boom', in 2007, median household income adjusted for inflation was lower than it had been in 1999. And you know what happened next.").
187. Real household incomes fell about four percent from 2000 to 2008, although nominal incomes increased by about 20%, from $42, 187 to $50, 233.
188. See U. S. Census Bureau, Income, Poverty and Health Insurance Coverage in The United States (Sept. 10, 2009), http://www.census.gov/Press-Release/www/ releases/archives/income-wealth/014227.html ("US Census Bureau announced today that real median household income in the United States fell 3.6 percent between 2007 and 2008, from $52163 to $50303.");
189. Tony Pugh, US Census: National Poverty Highest Rate in 2008 in Decade, PRESS OF ATLANTIC CITY, Sept. 11, 2009, http://nl.newsbank.com/nl-search/we/ Archives?p-product=AC&p-theme=ac&p-action=search&p-maxdocs=200 &p-topdoc=l&p-text-direct-0=12AACD8C803BF790&p-field-direct-0= document-id&p-perpage=10&p-sort=YMD-date:D&s-trackval=GoogleP M (arguing that "real median household income is 4.2 percent lower than it was in 2000").
190. Compare Jonathan Peterson, Poverty Rate Falls to 11.3%, But Trouble Looms, L. A. TIMES, Sep. 26, 2001, at A25 ("Yet overall, the median household income of $42148 slipped just below the record of $42187 in 1999....")
191. with Inside Obama Budget: Who Gets a Tax Break, MINN. STAR-TRIB., Feb. 27, 2009, http://www.startribune.com/politics/40458882. html ("The median household income was $50, 233 in 2007, according to the Census Bureau.").
192. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tb1. 705 (2009);
193. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 488 tbl. 770.
194. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tbl. 705 (2009);
195. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 489 tbl. 770.
196. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tbl. 705 (2009);
197. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 488 tbl. 770.
198. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tbl. 705 (2009);
199. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 489 tbl. 770.
200. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tbl. 705 (2009);
201. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 489 tbl. 770.
202. The Census Bureau measures prices of such goods in 2000 and 2007 against prices in 1984.
203. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 474 tbl. 713 (2009);
204. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 494 tbl. 774.
205. See, e.g. Associated Press, Teachers Assail TV, Big Classes Seeks to Explain Drop in Reading, Writing Skills, TOLEDO BLADE, Nov. 27, 1976, at 12.
206. See Posting of Nick Bilton to the New York Times Bits Blog Re: The American Diet: 34 Gigabytes a Day (Dec. 9, 2009), http://bits.blogs.nytimes.com/ 2009/12/09/the-american-diet-34-gigabytes-a-day.
207. See id.
208. See Michael Hirschorn, The Revolution Will Be Televised: TV Can Avoid the Music Industry's Fate and Survive the Digital Age, But Only by Beating the Internet at Its Own Game, ATLANTIC MONTHLY, Mar. 1, 2008, at 17
209. WLNR 5179345.
210. See Posting of Nick Bilton, supra note 90.
211. See id.
212. Compare Times to Raise New York Price, LAKELAND LEDGER, Sept. 2, 1999, http://news.google.ca/newspapers?id=vZssAAAAIBAJ&sjid=9PwDAAAA IBAJ&pg=3674, 693821&dq=york-times+newsstand&hl=en (reporting newsstand price of The New York Times metropolitan New York edition of $0.75)
213. USA TODAY MEDIA KIT (2010), http://www.usatoday.com/marketing/media-kit/ pressroom/timeline.html (noting that USA Today had newsstand price of $0.50 prior to 2004)
214. and Wall Street Journal to Hike Newsstand Price, L. A. TIMES, Mar. 2, 2001, at C2 (noting that The Wall Street Journal had newsstand price of $0.75 prior to 2001)
215. with Associated Press, New York Times to Raise Newsstand Price to $1.50, NEWSDAY (N. Y.), July 23, 2008, http://www.nydailynews.com/money/ 2008/07/23/2008-07-23-new-york-times-to-raise-newsstand-price-.html
216. Associated Press, USA Today Price Rising to $1 on Newsprint Costs, USA TODAY, Oct. 10, 2008, http://www.usatoday.com/money/media/2008-10-10-usa- today-priceincrease-N.htm (USA Today raised its price to $1 per copy at newsstand in 2008)
217. and Wall St. Journal Will Raise Price to $1.50, N. Y. TIMES, June 14, 2007, http://www.nytimes.com/2007/06/14/business/media/14journal.html (The Wall Street Journal raised its price to $1.50 in 2007).
218. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 477 tbl. 714 (2009);
219. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 498 tbl. 775.
220. See U. S. Census Bureau, Statistical Abstract of the United States: 2009, at 468 tbl. 705 (2009);
221. U. S. Census Bureau, Statistical Abstract of the United States: 2000, at 488 tbl. 770.
222. Compare Blockbuster Inc. 2001 10-K, at 6, http://www.secinfo.com/dScRa. 3Tx.htm
223. with Andy Meek, Blockbusted! Local Franchisee Sues Blockbuster Inc., Alleges Dallas Company 'Undercut' His Business, MEMPHIS DAILY NEWS, Jan. 5, 2007, http://www.memphisdailynews.com/editorial/ArticleEmail.aspx?id= 31762&print=l
224. and Carl DiOrio, Blu-ray May Save Day as DVD Sales Slump, HOLLYWOOD REP./REUTERS, Jan. 8, 2009, http://uk.reuters.com/article/idUKTRE5070RF20090108? sp=true.
225. See Parks Associates, Consumers to Spend Billions on Internet Video Services by 2013 (Aug. 12, 2008), http://newsroom.parksassociates.com/article- display.cfm?article-id=5092.
226. Compare, e.g., NPD Group, Press Release, The NPD Group Reports Annual 2002 US Video Game Sales Break, GAMEINFOWIRE. COM, Jan. 28, 2003, http://www.gameinfowire.com/news.asp?nid-1467
227. with Daniel Terdiman, Video Game Industry Roars in December, C-NET NEWS. COM, Jan. 15, 2009, http://news.cnet.com/8300-10797-3-235-l.html?keyword=NPD.
228. See CHARLES H. FERGUSON, THE BROADBAND PROBLEM: ANATOMY OF A MARKET FAILURE AND A POLICY DILEMMA 86 (2004) 86;
229. Ken Auletta, 'Googled': From Brainchild to Behemoth, NPR (Nov. 19, 2009), http://www.npr.org/templates/story/story.php?storyld-120389927.
230. See Marius Meland, AOL Junkies, FORBES, Feb. 2, 2000, http://www.forbes. com/2000/02/02/mu4.html.
231. See Michael S. Hart, 100 Million More eBooks Downloaded From Project Gutenberg (Aug. 3, 2009), http://www.gutenbergnews.org/20090803/worldebook-fair- ends-tuesday-august-4-midnight/;
232. Book Industry Study Group, Inc., Book Industry TRENDS 2009 Indicates Publishers' Net Revenue Up 1.0 Percent in 2008 to Reach $40.32 Billion (June 3, 2009), http://www.bisg.org/news-5-363-book-industry-trends-2009- indicates-publishers-netrevenue-up-10-in-2008-to-reach-4032-billion. php. For example, Mark Twain's The Adventures of Huckelberry Finn, which publishers Wiley & Sons and Simon & Schuster have marketed in various copyrighted editions, is available for free on an advertiser-supported Web site as an audiobook based on the Project Gutenberg edition.
233. See Adventures of Huckleberry Finn Podcast by Mark Twain (Jan. 20, 2010), http://www.learnoutloud.com/Podcast-Directory/Literature/American-Classics/ Adventures-of-Huckle berry-Finn-Podcast/18027.
234. See Justin Mann, You Tube Beats Hulu for Online Market Share, TECHSPOT. COM, Feb. 5, 2009, http://www.techspot.com/news/33493-YouTubebeats-Hulu-for- online-video-market-share.html.
235. 708 F.2d 1081 (7th Cir. 1983).
236. See id. at 1161.
237. 451 U. S. 557 (1981).
238. See id. at 563-64.
239. See id. at 560-61, 564.
240. * 6 (W. D. Pa. Oct. 13, 1998) ("There is no dispute that when used properly multiple regression analysis is one of the mainstream tools in economic study and it is an accepted method of determining damages in antitrust litigation. "). Indeed, some economic analyses may be irrelevant if they fail to control for essential variables.
241. Cf. Bazemore v. Friday, 478 U. S. 385, 400 n. 10 (1986).
242. See STATISTICS FOR LAWYERS, supra, at 324-26;
243. Reference Guide on Statistics, supra note 80, at 95;
244. REFERENCE GUIDE ON MULTIPLE REGRESSION, supra at 188-97.
245. See Image Tech. Servs. v. Eastman Kodak Co., 125 F.3d 1195, 1224 (9th Cir. 1997) (stating that damages attributable to lawful conduct "must be disaggregated");
246. MCI Communications, 708 F.2d at 1161 (similar);
247. In re Indep. Serv. Orgs. Antitrust Litig., 85 F. Supp. 2d 1130, 1153-54 (D. Kan. 2000) (similar)
248. aff'd, 203 F.3d 1322 (Fed. Cir. 2000);
249. PHILLIP AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 391g, at 490 (2d ed. 2000) (similar).
250. See Eric S. Boorstin, Music Sales in the Age of File Sharing (Apr. 2004) (senior thesis, Princeton University), available at http://www.cs.princeton. edu/-felten/boorstin-thesis.pdf.
251. See Felix Oberholzer-Gee & Koleman Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis, 115 J. POL. ECON. 1 (2007);
252. Martin Peitz & Patrick Waelbroeck, The Effect of Internet Piracy on CD Sales: Cross-Section Evidence (Jan. 2004) (CESifo Working Paper No. 1122), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=511763;
253. Alejandro Zentner, Measuring the Effect of Online Piracy of Music Sales (Dec. 2003) (unpublished manuscript, University of Chicago), http://economics.uchicago.edu/download/musicindustryoct12.pdf;
254. Stan Liebowitz, Will Downloads Annihilate the Recording Industry? Pitfalls in Measuring the Impact of File-Sharing July 2004) (CESifo Conference Paper), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=414162;
255. Martin Peitz and Patrick Waelbroeck, File-Sharing, Sampling and Music Distribution 26 (Dec. 2004) (International University in Germany, Working Paper), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=652743. Some studies purporting to find a large negative effect of file-sharing on sales apparently did not control for other ways that consumers with Internet connections might spend money they would previously have spent on recorded music, such as DVDs and video games, instead assuming that the sole cause of any decreased sales not attributable to age or gender is Internet usage as a proxy for file-sharing.
256. See Stan J. Liebowitz, Testing File-Sharing's Impact on Music Album Sales in Cities, 54 MGMT. SCI. 852 (2005), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=829245.
257. See Donald Blackburn, On-line Piracy and Recorded Music Sales, at 20, http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.117.2922. Thus, the author adds that his data "suggests that every 26 additional files available online increases the week's sales of the album by one unit."
258. Id. Another study "suggests that every additional 66 downloads increase sales by one unit."
259. Id.
260. See Sam Reimert, Downloads and Sales: Mutually Exclusive? 14 (2008) (Master's thesis, University of Maastricht), available at http://arno. unimaas.nl/show.cgi?fid=13396.
261. See Birgitte Andersen & Marion Frenz, The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study For Industry Canada (2007), http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip01461.html.
262. See Reimert, supra note 115, at 55.
263. Such studies have been attempted for the impact of file sharing in recorded music sales, but not for the impact of digital libraries on book sales, to my knowledge.
264. See Liebowitz, Will MP3 Downloads Annihilate the Record Industry?, supra note 6;
265. Oberholzer-Gee & Strumpf, supra note 6;
266. Oberholzer-Gee & Strumpf, The Effect of File Sharing on Record Sales, supra note 114, at 38-40;
267. Martin Peitz & Patrick Waelbroeck, Why the Music Industry May Gain from Free Downloading: The Role of Sampling, 24 INT'L J. OF INDUS. ORG. 907 (2006).
268. See Tom Sowa, Google Tools Help Geneaologist Track Roots, SPOKANE SPOKESMAN-REV, July 27, 2008, http://www.lineages.co.uk/2008/07/28/family-ties- google-tools-help-geneaologist-track-roots/;
269. Posting of Mark Stout to Ideas from Mark Stout Re: eBooks from Google, Dec. 22, 2008, 11:08 AM, http://markstout.blogspot.com/2008/12/ebooks-from- google.html.
270. See Michael Healy (Executive Director, Book Industry Study Group), Book Industry TRENDS 2009 (2009), http://www.slideshare.net/bisg/bookexpoamerica- book-industry-trends-2009.
271. See id.
272. Cf. Oberholzer-Gee & Strumpf, The Effect of File Sharing on Record Sales, supra note 114, at 38-40 (describing such an analysis comparing record companies' sales and popularity on file-sharing sites).
273. See Healy, supra note 121, at 18.
274. Compare id. at 18
275. with Press Release, Book Indus. Study Group, Book Industry TRENDS 2002 (May 10, 2002), http://74.125.93.132/search?q=cache:FV9-cpjWeMwJ:www.bisg.org/ news-5-10-domestic-consumer-expenditures-on-all-books-expected-to-reach-364- billion-by-2006.php.
276. Compare Healy, supra note 121, at 18
277. with Press Release, Book Indus. Study Group, Book Industry TRENDS 2006 (May 22, 2006), http://www.bisg.org/news/press.php?pressid=35
278. and Press Release, Book Indus. Study Group, Book Industry TRENDS 2002 (May 10, 2002), http://74.125.93.132/search7q=cache:FV9-cpjWeMwJ:www.bisgorg/ news-5-10-domestic-consumerexpenditures-on-all-books-expected-to-reach-364- billion-by-2006.php.