This essay by Lewis Hyde is typical of almost everything I’m reading about the Google Book Settlement. Here’s the usual structure:

1) We agree that there are many, many “orphaned” works out there — works published within the period of copyright law but whose copyright owners canot be found;

2) We agree that it’s a problem that, under the current copyright regime, no one can re=publish those works;

3) We agree that Google and Google alone has the resources to make most (all?) of these orphaned books available;

4) But we don’t like the fact that the GBS would give Google complete control over the distribution of these orphaned books.

Thus Hyde concludes:

[The GBS] does free the orphans from copyright limbo, but here’s the catch: They will effectively belong only to Google and the other settling parties. It will be almost impossible for any other online player to get the same right to use them. The only way a potential competitor could avoid the threat of statutory damages would be to do what Google did: scan lots of books, attract plaintiffs willing to form a class with an “opt out” feature, negotiate a settlement and get it approved by a judge. Even for those with time and money to spare, that promises to be an insurmountable barrier to entry.Thus does the settlement portend Google’s unlimited dominion over electronic books. By aggregating the monopoly power latent in each orphan, the proposed agreement doesn’t just get the Brats to work on Google’s farm; it secures for Google a lasting monopoly in this newest of book trades. Talk about making hay!

Okay, great. But what alternative do you propose? That’s what’s usually lacking in these laments. If Google does not get to distribute these books, then they go back into “copyright limbo” and are not accessible to anyone. Is that a better situation than one in which Google makes a zillion bucks and has an effective copyright on the books?I don’t think it is. But I also don’t like Google having more power than it already has. My recommendation — which I admit is not going to happen — is that we set aside the GBS until we go back and shorten our ridiculously over-extended copyright period. In other words, I agree with James Boyle. As he wrote in a column for the Financial Times,

I agree with a lot of the criticisms. Privacy protections could be improved, the monopoly point is a real one and the rights of libraries should be expanded. Some of those points might be fixed before the agreement is ratified. Others may need subsequent scrutiny by privacy and antitrust regulators. Google has responded, persuasively, that many of the problems could be resolved if only we had a rational copyright law in the first place with a safe harbor for the use of orphan works. The criticisms continue.What if the critics prevail and no settlement can be reached? I would prefer us to fix copyright law so these issues disappear. But if we cannot do that, we need a second best solution. Google’s escape module has flaws, lots of them, but it is better than staying in the black hole.