By now, reams have been written about the proposed Google Book Settlement. One of the most readable and lucid commentaries, especially on the subject of orphan works (works still in copyright whose copyright owner cannot be determined or located), was published in the New York Times Book Review on October 4. Written by Lewis Hyde, a fellow of the Berkman Center for Internet and Society at Harvard University, the essay lays out the history and purposes of copyright law. Hyde feels that the proposed treatment of orphan works by the Settlement is not in keeping with the history of copyright, and would effectively give Google "unlimited dominion over electronic books." This would amount to a "lasting monopoly in this newest of book trades."
...James Madison explained that copyright is best viewed as 'a compensation for a benefit actually gained to the community.' There were good reasons, he wrote, to give authors a 'temporary monopoly' over their work, 'but it ought to be temporary' because the long-term goal is to enrich public knowledge, not private persons.
Madison honors the same beneficiaries found in the Statute of Anne [enacted in 1709, the first copyright act], the writer and the rest of us. In no case are third parties meant to profit, as the Google settlement would allow. To let them do so would be like letting an executor drain an estate whose rightful heirs cannot be found.
Hyde speaks approvingly of a recent proposal by the Department of Justice that would vest the authority to deal with orphan works in the court, just as we do with actual orphans.
...such a guardian would have to be charged with service to both the rights holders and the public good. He would have to try to find lost owners and pay them their due; should no oweners be found, he would have to devise a way to release these works to the public domain. (He could simply require that users who've been charged for orphans get their money back, or that the fees Google charges libraries be lowered in proportion to revenue collected in error.
Such an approach would ensure that orphan works "enrich public knowledge."