Do orphaned books need a guardian, the way orphaned children do? Some commentators on the Google Books Settlement think they do. They are offering to resolve an impasse that arose when a number of parties raised second thoughts about the impending settlement, which was forged in good faith between Google and the author/publisher community.

Orphaned books are books whose copyrights are still in effect, but whose authors cannot be found – or at least have not come forward to claim their “children”. How serious is the problem? So serious that if the orphaned books were orphaned humans they would populate a city. “Of more than seven million works scanned by Google so far, four to five million appear to be orphaned,” says Lewis Hyde, a fellow of Harvard’s Berkman Center for Internet and Society.

Hyde has written an incisive analysis of the orphaned books problem for the New York Times Sunday Book Review.

Google, both as a public service and a commercial venture, took it upon itself to scan all those books (including many that have run out of copyright and entered the public domain). Google then proposed making the orphan books available for sale. That’s when the Authors Guild and Publishers Association sued, and the resulting settlement created a Book Rights Registry funded by Google, aimed at trying to “locate rights holders and create a database of their contact information and copyright interests in Books and Inserts, and to collect revenues from Google and distribute those revenues to rightsholders, and for notice and settlement administration costs.”

That solution is the crux of the position taken by the holdouts. They don’t want Google exploiting the books while the “parents” are being searched for. They don’t want Google exploiting the books at all, at least not until the authors (or their heirs) can be located and express their own volition as to what should be done with their books.

“Surely,” says Hyde in his essay Advantage Google, “there are better ways to dispose of orphan income. The Department of Justice in fact suggested one two weeks ago, when it issued a critique of the proposed settlement saying, among other things, that the court might do as we do with actual orphans: appoint a guardian to look out for them until they come of age. In this case, I believe, 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 owners be found, he would have to devise a way to release these works to the public domain.”

If you’re interested in delving into the Settlement, you can click on the FAQs. And for a different take on it, read Google Settlement Under Attack for Making Treasure Out of Trash.

RC