It was just a few days ago that I last wrote about the way people tend to willfully misunderstand Google Books these days, and I had thought I was done with it, but I came across another article so wrong-headed that I just had to speak again. In this case, it’s a piece by James Somers in The Atlantic entitled “Torching the Modern-Day Library of Alexandria.”

The article would be a good summary of the process Google used to scan the books, the contentious issues surrounding the lawsuit and the settlement, and why the Department of Justice and many putative members of the class action objected to it—if it weren’t that it gets so many other things wrong.

It’s so obnoxious I barely even know where to begin. For starters, it partakes of some of the same wrong-headedness as the Scott Rosenberg piece I mentioned in the link above: the idea that “orphan works” is synonymous with “out of print,” or that Google Books’s main purpose was to serve as a “celestial bookstore” whether the publishers wanted it or not. (Though at least Somers does admit that the original intention of Google Books was to feed a search engine, not to make the books widely available.)

And Somers also puts forward the idea that Google Books was somehow at fault for “ask[ing] for forgiveness rather than permission” when it was, in fact, exercising its fair use rights the way anyone can who isn’t afraid to risk a rights-holder lawsuit. I addressed all those in the above piece, so I won’t retread the same ground here.

But the biggest gaffe the article presents is the idea that the rejection of the Authors Guild’s settlement—the one that would have let Google Books act as a “celestial bookstore” in addition to its search engine functions—is tantamount to burning another Library at Alexandria.

Somers writes:

It was strange to me, the idea that somewhere at Google there is a database containing 25-million books and nobody is allowed to read them. It’s like that scene at the end of the first Indiana Jones movie where they put the Ark of the Covenant back on a shelf somewhere, lost in the chaos of a vast warehouse. It’s there. The books are there. People have been trying to build a library like this for ages—to do so, they’ve said, would be to erect one of the great humanitarian artifacts of all time—and here we’ve done the work to make it real and we were about to give it to the world and now, instead, it’s 50 or 60 petabytes on disk, and the only people who can see it are half a dozen engineers on the project who happen to have access because they’re the ones responsible for locking it up.

But Somers might just as well say that somewhere at Google there’s a database containing the complete contents of the public World Wide Web and nobody is allowed to browse those contents either. (In fact, I gather there are actually something like 6 or 7 complete such databases.) Being browsed is not what such databases are for. You have to make a copy in order to index the copy so that it can be searched. Every search engine of any kind includes the complete contents of the material to be searched, even if it is not accessible to be browsed.

Locking these books up is not tantamount to burning the Library at Alexandria, because this “Library” never existed in the first place, save in the blue-sky pipe dreams of the Authors Guild and its allies. Certainly Google never had the notion of trying something like that originally; that was all the Authors Guild’s bright idea.

I can understand why Somers might be upset at the missed opportunity. I was also hopeful something good would come of it when the settlement was originally proposed But since then, I’ve come to realize that a class-action lawsuit by such a small fraction of potentially affected authors was simply not a good venue for making sweeping changes to the law overall. The class simply wasn’t representative of all authors as a whole—and as the article notes, plenty of potential members of the lawsuit class had their own problems with the settlement.

And, unfortunately, the kind of sweeping changes to the law the settlement’s proponents hoped for never materialized in Congress in the intervening years. Not that this is a huge surprise, given that every time copyright has been addressed in Congress over the last few decades, it’s been because corporate rights-holding lobbies wanted to extend it ever further. It seems doubtful those moneyed interests would permit any movement aimed at loosening copyright restrictions to gain any traction.

(It will be interesting to see what happens in a few years when it’s time for Disney to gear up to lengthen copyright terms again. Are enough people finally cognizant of the benefits of distributing digital media on the Internet that there will be wider objections to the idea of continuing to keep so much of it under lock and key?)

But unfortunately, just because it’s too hard to get Congress to pass laws doesn’t mean it’s right to try to make an end run around them through the judiciary. Such end runs might work for narrower exceptions, but something this broad-ranging has to be passed by the people who are supposed to represent everyone. All the frustration in the world can’t change that.

And people who are upset that Google’s the only one permitted to build such an index should note that there’s absolutely nothing stopping any other company from starting its own mass digitization project. They just need to have the same willingness to pour money into running the project, and into facing down litigation from the Authors Guild or anyone else who harbors the same objections to the idea as they did to Google. Given that the Second Circuit Court of Appeals ruled Google Books to be fair use, and SCOTUS didn’t take the case, there’s at least one strong precedent in their favor.