GBS: Beyond Lawyerese


Out of the minor storm of paper filed last week, there are really only two documents that are a pleasure to read. Paul Aiken’s declaration is the only one of the numerous declarations to read as though it was written by the person whose name it bears. (Dan Clancy is charismatic and funny in person, but his declaration is dry as dust; the real Dan Clancy would never put quotation marks around “optical character recognition.”) His animating convictions, enthusiasm for the settlement, and occasional frustration are all evident. It’s surprisingly, and refreshingly, human.

Google’s brief is also a great piece of rhetoric. There are parts that make good sense, and parts that don’t hold up so well once you check what the cited cases actually say, but the whole thing is written with verve, and then some. I regularly lost track of where the plaintiff’s supplemental brief was going with a section and had to flip back to trace the argument; not so with the Google brief. The introduction is a model of how to write an effective summary of a legal argument, and as for the conclusion, I might as well just reproduce it in full (I’ve turned the footnotes into hyperlinks.):

In 47 B.C., Julius Caesar set fire to the ships in the harbor at Alexandria. The fire spread ashore, destroying the more than 700,000 volumes in the Library of Alexandria.

In 1952, Edward Alexander Parsons published the definitive work on the Library of Alexandria, titled The Alexandrian Library, Glory of the Hellenic World: Its Rise, Antiquities, and Destructions. That book has been out of print since the mid-1960s.

Today, Plutarch’s account of the destruction of the Library at Alexandria can be read by any internet user through Google Book Search, either in English or in the original Greek. But Parsons’ book cannot; his work is not available for sale, and those who wish to read it must travel to a major research library. At issue in this case is whether out-of-print books like The Alexandrian Library will be made accessible to readers and profitable to their authors, or whether they will be effectively lost forever.

The ASA cannot claim to create a Library of Alexandria, and no settlement can bring back the works lost to Caesar’s fire. But it is hoped that this compromise between authors, publishers, libraries, and a company willing to spend hundreds of millions of dollars to digitize so much of the printed history of humanity will be another small step toward the vision that the Alexandrian Library represents.

The ASA is fair, reasonable, and adequate. The Court should grant the motion for final settlement approval.

There’s an irony here. Plutarch reports, “[Caesar] was forced to divert that danger by setting fire to his own ships, which, after burning the docks, thence spread on and destroyed the great library.” But this is controversial; other ancient writers’ accounts suggest that the library may have been only partially damaged by Caesar, or not affected at all, and destroyed only later. I checked Lionel Casson’s Libraries in the Ancient World, Johnson and Harris’s History of Libraries in the Western World (inter-library loan gave me the 1976 third edition), and Wikipedia, none of which present Plutarch’s version as fact.

The Alexandrian Library is in agreement, as one can tell from this excerpt posted online, which catalogues the various conflicting ancient authorities. So the “definitive work” on the Library of Alexandria (according to Google) disputes a proposition the brief presents as settled historical fact. Depending on your perspective, this either undermines or underlines Google’s point.


I just visited the meta-book-search engine www.addall.com/used. I searched on “parsons” as author plus “alexandrian library” as title.

There are 59 listings for used copies of Parson’s book, some of which are duplicates. Most used booksellers like to get their wares listed in more than one book search engine. You can tell which are duplicates because the bookseller is repeated, as in:

Road Runner Book Shop via Alibris

Versus Road Runner by itself or Road Runner through ABE.

Also, the descriptions of condition are often quite detailed and when the wording is identical, it is usually the same bookseller. Prices for this book start at $19.95.

Most books, including some quite rare ones, can be interlibrary loaned. The Worldcat database is the main place librarians look to see who will loan them a book for a patron. It is not a complete list of books in libraries. A librarian who works for the library distributor Quality Books told me it’s about a third of them, but that it does represent many of the copies that are easiest to ILL. Here’s the WorldCat URL:

http://www.worldcat.org/wcpa/search?

I chose Advanced Search and came up with 23 different listings, each with different metadata for the same book and a different list of libraries under each version of the metadata. Here’s what I got when I clicked on the first listing:

Displaying libraries 1-6 out of 780 for all 6 editions

I had this list organized by my zip code. There are eight copies available in libraries within a 45-minute drive from my house (some quite close); I could read the book in one of those libraries or, probably, borrow it directly. The other 772 copies are in libraries further away, but can be interlibrary loaned through a library more local to me.

I confess that I did not go through all the other 23 listings, most of which, as far as I went along, contained fewer libraries and many of them foreign. Foreign libraries will sometimes ILL books to US libraries; I’ve borrowed some. However, when I can read this book in my own neighborhood or buy it from the net for about $20, why bother with foreign shipping charges?

Doesn’t Google know how to use a search engine to find this data?


I agree with you that Aiken’s brief is an accurate depiction of his personal message. The problem is that his message materially misrepresents the settlement.

Google’s brief doesn’t distort the settlement to the same degree as Aiken’s. Instead, it distorts some of the objections, ignores others, and creates yet others out of whole cloth, triumphing rhetorically over a series of straw men while failing to engage with most of the actual objections.


To the extent Google chooses to delete scanned books from its data base pursuant to the GBS which allows it to delete up to 15% of books for editorial reasons and unlimited works for legal(i.e. foreign nation censorship)reasons, then Google has more in common with the historic book burners of antiquity, than those who sacrificed to preserve, maintain and disseminate books for the benefit of human knowledge and advancement.


I find invoking the Library of Alexandria sadly amusing, as it’s rather an instance of hoisting by one’s own petard — at least once one acknowledges how the works in the library were acquired: through purchase, or through enforced-by-the-sword turnover for copying when a work entered the city. (Later Ptolemies were rumored to keep the rarest and most-valuable works so turned over for copying…)

One should be rather careful when reasoning by analogy to ensure that the object of the analogy doesn’t have problems. Of course, a failure to take care is exactly what Google did in the first place, so I suppose we shouldn’t be surprised…


The several-times-burned Library of Alexandria existed before the printing press; when obviously, comparative few copies of any book could be produced. I am both a rare book collector (in a certain field) and a researcher. Most really rare books are already in the public domain. The so-called orphan works date from after 1923. In many cases, used copies are plentiful and cheap on the market, and even more plentiful in libraries.

It is unlikely that any scans Google deletes will be any “rarer” than The Alexandrian Library, Glory of the Hellenic World: Its Rise, Antiquities, and Destructions; of which see above. That example is ridiculous to anyone who spends five minutes looking at common book search engines, as are similar examples given in PR statements Google has made from time to time.

A book not being available either from Google or as an e-book, hardly constitutes not being readily available to the public from some other vendor and/or in some other form. I really do not think using interlibrary loan procedures is any kind of hardship.

In any case, I’m noticing that Google is now sliding closer to admitting their true agenda of scanning newer books that are more desirable for them to sell. They’re now using the term “out of print” a lot, but in fact, they are scanning everything they can. They have scanned millions of in-print books by locatable publishers and authors: Books listed in numerous industry databases such as Books In Print (which is also online), wholesaler databases such as Ingram’s and Baker & Taylor’s (Ingram’s is online, I’m not sure about B & T), on Amazon and Amazon Marketplace, listed in meta-book-search engines like www.addall.com (the new book counterpart to www.addall.com/used), and listed on publishers’ and authors’ websites.

Why do you think so many authors are so upset about the scanning project? Granted, they should be upset about millions of anybody’s copyrighted works being scanned at all. But human nature being what it is, it’s far more upsetting to discover your own books were scanned and that after the fact, a laughably poor 300+ page contract binding you for the rest of your life and giving you xero recourse if Google violates it, is shoved at you with the threat of Google selling your books without paying you anything if you don’t agree to that exploitive contract.


I will add, for those who experience damp eyes and a catch in the throat whenever the marketing slogan “universal library” is mentioned:

Why, exactly, do all these books have to be in one centralized location?

It is certainly desirable from Google’s point of view, for them to offer their customers a much larger quantity of merchandise than their competitors offer. That’s why Google is so eager to scan copyrighted books. Anyone can legally scan public-domain books. The Library of Congress and some other libraries have had programs to do this since before Google started scanning. But as for copyrighted books, other companies have so far had either less money to pay legal fees or more ethics. If Google can ram the Settlement through the courts, this makes their selection of merchandise unique: Exactly the antitrust aspect of the Settlement that their competitors Microsoft, Yahoo, and Amazon object to so much; not to mention the US Department of Justice.

Getting back to centralization: There have been, since years before Google started scanning, databases of books available through interlibrary loan. In the US, WorldCat is the main one. Those research libraries will lend you the books if you just fill out a form at your local library. I’ve been doing that for 30 years. I’ve borrowed rare early 19th-century books from places like the Smithsonian library that I was astonished they’d lend out. Of course, it would have been quite legal for the Smithsonian to scan those public-domain books, and maybe they have by now.

There are also, of course, meta-search-engines for buying used books.

Since you can borrow (and in many cases buy) most out-of-print books anyway, and since considerable information about where to get them is centralized and on the net, why do you need the Google Monopoly Bookstore? Excuse me, Google Universal Library.


I’ve noticed that Owen Atkinson of the ALCS submitted a declaration to the court instead of writing a letter of support. Can anyone explain the difference? I’ve noticed that the declaration is signed under penalty of perjury and that that it is was submitted after the deadline for other filings, but I don’t understand who is allowed to send a declaration.

Does the fact that the ALCS submitted one mean that they are more involved in the settlement negotiations than the rest of us?


Ms.Kimpton:

The Atkinson declaration was a formal court document signed under penalty of perjury like court testimony, that is an affidavit, and it was submitted by the Authors Guild and Publishers in support of their claim for a class action including British authors , including thousands which Mr.Atkinson claims are represented by his organization(ALCS). The case litigants,the Authors Guild and the U S Publishers needed Mr. Atkinson’s Declaration to support their claim to include British authors in the case. I am sure Gillian Spraggs will be happy to comment further on the proprieties of Mr.Atkinson’s(i.e. the ALCS) submission and position in the case, whether or not it was controversial or disputable amongst the British writing and publishing communities. Any writer, class member, publisher, or consumer(i.e. readers like the Blind) could have written a letter and many did, or could have filed formal Brief/Memorandum or Declaration by the Jan. 28th fling deadlines, but Mr. Atkinson’s Declaration was instead a confirmation of formal legal joinder and alliance on behalf of British authors in and with the Authors Guild in its pursuit of the Google GBS/ABS book scanning and marketing endeavors.


I am grateful to Diana for asking this question since for some reason it hadn’t occurred to me to wonder about it and as your reply makes it clear, it is obviously very important.

Diana, who is a member of ALCS (I’m not) undoubtedly knows at least as much as I do about what went on before the society company decided, first to send a letter to the court to support the settlement, as it did last September, and subsequently to file this declaration. It is my understanding that ALCS has not consulted its membership.

The text of the ALCS mandate, that members have to sign, is on their website. The preamble states:

Each Member grants ALCS the authority to exercise rights on their behalf as part of schemes for the collective administration of royalties in the UK and internationally … the Society is simply appointed to administer the rights in situations where collective administration is the most appropriate option i.e., where the fees cannot practically be obtained through any other means.

I note that the US Dept of Justice, in its statement of interest last September, rejected the idea that licensing through a collecting society is appropriate in the case of Google Books, commenting, ‘… book authors and publishers have not shown that they lack a practical means to be paid for uses of their works in the absence of collectively negotiated pricing mechanisms’. In other words, it sees no reason why Google should not negotiate with authors and publishers individually, just like anyone else who wants to purchase licences to use in-copyright works.


Gillian A while ago I posted a longish quote from Shane Simpson a widely respected Australian copyright law ‘guru’.

…the individual copyright owner has the essential right to control usage - even though, for ease of administration, that individual may choose to license or assign that right to a representative organisation. When that right to control is taken away, all that one is left with is a ‘right to remuneration’, which is a quite different concept to the full rights of copyright” and, “not all rights of copyright benefit from collective administration….

Dressing up the loss of important individual authors rights as a gain for the class of authors is the heart of the darkness in this web of misrepresentations.


Mr. Garchik,

Although perhaps anyone could have written a letter to the court, few Americans have a clue how the legal system works to anywhere near that level of detail. I, for example, thought I could not write a letter to the court because I opted out of the Settlement. Or rather, I believed I could write one but the judge was under no obligation to read it because I was not a party to the Settlement, making writing a letter seem pointless, considering how much he is already required to read.

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