Statement of Public Knowledge on Google Book Search CaseApril 29, 2009
The key concern we have with the settlement is its effect on orphan works. For those books whose authors or copyright holders can't be found, the settlement automatically places them into a system where their works can be digitally published only by one party.
While we want to encourage access to orphan works, we want to make sure that the settlement doesn't create an anticompetitive situation. In the proposed settlement, only one entity—the Book Rights Registry (which will be initially run by the Authors Guild and the Association of American Publishers)—will be granting the licenses to use these absent authors' works. Meanwhile only one entity—Google—will be able to use these licenses.
Furthermore, the idea of a small subset of authors and publishers licensing a large number of orphan works judicially (rather than legislatively) is somewhat troublesome on its own. The idea of doing it judicially and only for one party is very troublesome.
In an ideal world, the law would allow equal access to licenses for orphan works as one part of a more comprehensive orphan works solution. These licenses would be available to anyone who wanted to digitize and provide access to orphan works. Unfortunately, it's not entirely clear that this settlement does that, or can.