Though it’s generally agreed that Google’s settlement with the Association of Publishers and Authors Guild was fundamentally sound, the New York Times‘s Miguel Helft points out an aspect that has many critics deeply troubled.

For the purpose of explaining it simply, we can divide books into three fundamental categories: 1) Those whose copyright is currently in effect and the copyright owners have been located; 2) Those whose copyright protection has expired and have entered the public domain where anyone may publish them without obligation to the copyright owner; and 3) Those whose copyright is currently in effect but the copyright owners have not been located or have not asserted their ownership.

If you’re in the first category you are afforded a large measure of control and protection including the right to opt out of the Google settlement. By opting out, you retain the right to file your own lawsuit or join a separate lawsuit against Google. If you opt out, you will not be entitled to receive any payments under the Settlement, or take advantage of other Settlement benefits. You must submit your opt-out instruction online or postmarked on or before May 5, 2009.

If you’re in the second and your book has fallen into the public domain there’s not much you can do about it But thanks to the changes in copyright laws starting in the mid-1970s, the ranks of authors who have outlived their copyrights are rapidly diminishing as we shift to protection for seventy years after the death of the author.

That leaves the third category and that’s the one that observers are worried about. Describing them as orphans, Helft explains that as a result of its scanning initiative, Google has become in effect the legal guardian of these millions of abandoned books, which gives Google “virtually exclusive rights to publish the books online and to profit from them.” As a result, “Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.”

Though every book was once some author’s love-child, many titles in this category may be of little literary, commercial or academic merit. Yet, who’s to say? One scholar’s trash may be another’s treasure, and the scholarly community is loath to give Google the right to make that judgment. This provision of the settlement may therefore be modified when the 134 page document comes before a court for approval in June. Robert Darnton, head of the Harvard University library system, makes no bones about it: “Google will be a monopoly,” he declares.

Needless to say, Google takes a very different view. “This agreement expands access to many of these hard-to-find books in a way that is great for Google, great for authors, great for publishers and great for readers,” Helft quotes Alexander Macgillivray, the lawyer who represented Google in the lawsuit.

Authors in the third category do have a remedy. Google is creating a Book Rights Register, which will be co-administered by authors and publishers, that will enable rights holders or their heirs to claim their orphaned books and collect any money that Google’s exploitation has earned for them – less Google’s 37% commission.

So, calling all authors or their heirs: visit http://books.google.com/ and enter your name in the Search box. If any of your books are there, review the copyright status of your books. If they are still legally protected by copyright you may elect to opt out out of Google’s offer to make them available in their program. If you keep them in the program you may earn a little money from Google’s exploitation of your publication rights. But you also you run the risk of having your book converted into formats that are competitive with those in existence or that might come into existence; and after Google takes its cut you will end up with a fraction of the value you might otherwise earn.

RC