Pamela Samuelson, A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement, 2013 Harv. J. L. & Tech. Occasional Paper Series 1 (2013)
The rejection of the ASA has not entirely ended academic debate about the antitrust implications of this agreement. This Article responds to critics of the antitrust objections to the ASA by making three main points. Part II explains that Judge Chin's incomplete and unpersuasive analysis of the antitrust objections to the proposed settlement agreement is best understood as an effort to encourage the settling parties to adopt more competitive terms in any revised settlement agreement. Part III points out that the DOJ did not reach definitive conclusions on antitrust issues posed by the ASA. The DOJ was, however, obliged to submit an interim analysis because Judge Chin wanted the government's input before he ruled on whether the settlement should be approved and the DOJ did a creditable job under the circumstances. Part IV contends that there was more merit to the DOJ's antitrust concerns about the proposed settlement than some commentators have recognized. A close examination of certain details of the ASA demonstrates that it posed significant anticompetitive risks in relation to price fixing and foreclosure of competitive entry.