Google has rights to a gazillion out-of-print books, people freak in expected manners, Globe article here.
One of the things that came up in my library automation class is the place of database aggregators in the marketplace. There are lots of databases out there, and it’s not realistic for every library to negotiate contracts separately with every database it might want, so you get these organizations with the clout and capacity to negotiate these bulk deals and resell them to libraries, who then only have to (and only get to) negotiate with one vendor.
The case of out-of-print books seem similar: many of the people and institutions who might be interested in having access to some of them don’t have the know-how, time, money, etc. to negotiate those rights. So one of the few organizations that does have the ability to do so on a grand scale, does so — and immediately you fall into problems of monopoly.
Which raises the question of whether there’s anyone who actually *can* get those orphan books to the light of day, some entity living in a narrow slice between practicality and regulation.
andromeda yelton 
This is kind of an artificial problem caused by the last few rounds of copyright changes. The easiest way to handle orphan books would be to let them fall into the public domain: require copyright renewal again, and if the owner of the work doesn’t care, it belongs to those who do.
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A major category of objections to the Google Books settlement is that it is legislation masquerading as a class action settlement. It is unclear why the plaintiffs have any authority whatsoever to enter into the settlement which binds people who, by definition, cannot be located or contacted.
To put it another way, who the heck are these “Authors’ Guild” people and why are they empowered to negotiate on my behalf? (Note that I have the ability to opt out, since I can be located, but that the authors of the “orphan works” that are the most interesting part of the settlement are necessarily not given that choice.) And even if you buy the rationale that a class action lawsuit is justified in being opt-out rather than opt-in, surely usually the whole weird class action alchemy requires that members of the class be contacted.
It may be argued that Congress has notably failed to address this issue, and that it is therefore long past time for the courts to pick up the ball. But it’s not clear that that’s really a sensible model for public policy. Probably the best outcome in my view is that Congress, having been handed a definite policy option by the courts, actually takes an up-or-down vote on the proposal at hand, removing any uncertainty; the worst outcome is that the already suspicious legal reasoning of the settlement goes to the Supreme Court and loses, reopening the whole mess to another decade of dithering.
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Sure there is! Let’s see: we’re looking for a non-profit organization, with the public interest in mind. Ideally, this means the government; more realistically, this means some non-profit organization and/or a branch of the government. The Library of Congress sounds like an admirable choice.
In fact, if the LoC were made provisory holder of the rights to orphan works, I’m sure it could have negotiated with some for-profit bodies, such as Google, to digitize the works etc. for free, granting them in return for their investment some time-bound monopoly, or some other perk. That way, the public interest is still served, without granting any single for-profit organization the actual _rights_ in perpetuity (that is, until the expire).
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Ceterum censeo sententiam Ioannis bonam esse — ius auctoris renovandum esse, aut opus labendum esse in dicionem communis.
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