D Is for Digitize: An Introduction

55 N.Y.L.S. L. Rev. 11 (2010)

SKU 304 Category Tag


James Grimmelmann

Matthew Sag’s The Google Book Settlement and the Fair Use Counterfactual serves
as an introduction to the settlement and the legal issues it raises.
Sag uses his prediction of the likely outcome of the underlying lawsuit—a fair use ruling in favor
of Google—as a baseline against which to measure the settlement. He finds that its
terms mirror this fair-use baseline in important ways. But in a few crucial places,
including, most critically, its defaults allowing Google to distribute complete copies
of books, the settlement creates new systems that could not have resulted simply
from litigation over fair use. By anatomizing the settlement and identifying its unique
features, Sag neatly frames the conversation over it.