The Proposed Google Book Search Settlement and ‘Orphan Works’

With a federal court contemplating a proposed settlement of a lawsuit challenging Google's book search technology, Professor James Grimmelmann examines the details. In his ACS Issue Brief, now available in the new edition of Advance: The Journal of the ACS Issues Groups, Grimmelmann writes:

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School, in The Google Book Search Settlement: Ends, Means, and the Future of Books, says several aspects of the proposed settlement deserve scrutiny.
Regarding the treatment of "orphan works," titles where the original copyright owner can no longer be located, Grimmelmann states:

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.