Google Book Project

Paul H. Rubin —  24 March 2011

Google’s efforts to make out of print books available online has run into a major stumbling block. Judge Chin ordered that books can only be digitized by Google if the author opts in; the agreement which he through out called for opt out.  This is an shame and a highly inefficient result.  As reported, the intricacies of copyright law and the unavailability of many rights holders means that opt in is not feasible in many cases.  As a result, thousands of books will not be digitized at all.  Instead of transferring rights to authors (which was apparently Judge Chin’s intent) he has simply destroyed valuable property rights.  This case was argued as an issue of the distribution of rights, but it is really about the creation of  rights — or, as it turns out, their non-creation.

Paul H. Rubin


PAUL H. RUBIN is Samuel Candler Dobbs Professor of Economics at Emory University in Atlanta and formerly editor in chief of Managerial and Decision Economics. He blogs at Truth on the Market. He was President of the Southern Economic Association in 2013. He is a Fellow of the Public Choice Society and is associated with the Technology Policy Institute, the American Enterprise Institute, and the Independent Institute. Dr. Rubin has been a Senior Economist at President Reagan's Council of Economic Advisers, Chief Economist at the U.S. Consumer Product Safety Commission, Director of Advertising Economics at the Federal Trade Commission, and vice-president of Glassman-Oliver Economic Consultants, Inc., a litigation consulting firm in Washington. He has taught economics at the University of Georgia, City University of New York, VPI, and George Washington University Law School. Dr. Rubin has written or edited eleven books, and published over two hundred and fifty articles and chapters on economics, law, regulation, and evolution in journals including the American Economic Review, Journal of Political Economy, Quarterly Journal of Economics, Journal of Legal Studies, and the Journal of Law and Economics, and he frequently contributes to the Wall Street Journal and other leading newspapers. His work has been cited in the professional literature over 8000 times. Books include Managing Business Transactions, Free Press, 1990, Tort Reform by Contract, AEI, 1993, Privacy and the Commercial Use of Personal Information, Kluwer, 2001, (with Thomas Lenard), Darwinian Politics: The Evolutionary Origin of Freedom, Rutgers University Press, 2002, and Economics, Law and Individual Rights, Routledge, 2008 (edited, with Hugo Mialon). He has consulted widely on litigation related matters and has been an adviser to the Congressional Budget Office on tort reform. He has addressed numerous business, professional, policy, government and academic audiences. Dr. Rubin received his B.A. from the University of Cincinnati in 1963 and his Ph.D. from Purdue University in 1970.

5 responses to Google Book Project

    north fork investor 24 March 2011 at 12:24 pm

    While I do not understand why digitized books are more valuable than on-digitized ones I will agree that digitized books are more valuable than out of print ones and that there is virtually no value to some out of print ones. Still Denny hasn’t eliminated creating that value and hasn’t destroyed anyone’s valuable property rights. The problem with the settlement is simply that Google wants exclusive rights to those orphan works in digitized form. I would be happy with a less cynical legislative solution in which Google can share such rights.


      “… I would be happy with a less cynical legislative solution in which Google can share such rights.”

      With whom? The problem is that for many out-of-print works, the current copyright holders cannot be found without doing extensive investigations of contracts that out-of-business publishers had with dead writers and their hard-to-find heirs. These books haven’t generated a dime of revenue for years. Making them available digitally isn’t harming anyone. If an author’s heir can prove that he holds the copyright to what was thought to be an orphaned work, then the heir can either have Google remove the digitized version or negotiate a contract to share revenues. No one can make money from an orphaned book if it is never digitized and displayed on the internet. The ruling destroys the potential future value of orphaned works.

        north fork investor 25 March 2011 at 12:47 pm

        Again the issue is using the class action process to gain exclusivity. Let Google publish the orphan works electronicially and even charge for it. But don’t prohibit potential competitor B to digitally cherry pick the most profitable orphan works and compete on price.

        If Google says opt in is “unworkable” (and why is noone challenging that because I have already come up with some schemes that makes opt in feasible for orphaned works and I am not that smart) or that it won’t digitally publish works without exclusivity, society is no worse off than it was before Google started raiding libraries and we allow for the possibility that some future Google-like company to try again without being such a stickler for exclusivity. If the issue is Google getting de facto indemnification for future claims of copyright violation from potential heirs again the settlement could be reconfigured without awarding exclusivity.


    Digitized books are more valuable than non-digitized books. For some out of print books there is virtually no value if they are not digitized. If they are “orphan” books there is no one to opt-in. Then these books will not be digitized, and their value will not be increased. This case has been going on for six years, since 2005. Even if a resolution is reached in another six years, the present value of the project will be reduced. The matter only deals with books written before digital rights were valuable, so all relevant costs are sunk and the goal should be to maximize the value of the existing books. For future books authors and publishers and Google will be able to specify in contracts the division of the rights, so the terms of this settlement are irrelevant for future decision making.

    north fork investor 24 March 2011 at 6:18 am

    this is a total mischaracterization of what has transpired. What judge Chin (who in my opinion ranks with Posner in his understanding of these types of matters) has done is to refuse to approve a highly cynical class action settlement between certain publishers and google that eliminates too much of Google’s trademark infringement risk. He has suggested that “opt-in” would resolve the issue for him but he did not say that was the only solution to the problem. Opt in may be a no brainer but that does not mean the parties can come up with a less cynical solution one that for example does not eliminate all of Google’s future risk in this matter.

    And please embellish your post to let me and others know how Chin has destroyed valuable property rights because that I do not understand.