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Einer Elhauge, Oct 29, 2009
Proper analysis of the Google books settlement requires framing the issues correctly in two important respects. First, it requires understanding that sound antitrust analysis turns on likely effects on consumer welfare, not on debatable spins of arid formalisms. Second, it requires measuring those effects compared to the but-for baseline of what the world would look like but for the settlement. Given the proper framing, the right question to ask is: Does the settlement lower consumer welfare from what it would be without a settlement? It is not an antitrust violation to enter into an agreement that benefits consumer welfare on the theory that another agreement could have benefited consumer welfare even more. Otherwise every joint venture could be stricken on the grounds that it would benefit consumer welfare even more if the joint venture offered its product for free.