Much of the emerging criticism of the Google Book Settlement is focusing on the fate of "orphan works" in it. Pamela Samuelson in her forthcoming ACM article on the settlement notes that "the settlement would, in effect, give Google the exclusive right to commercially exploit millions of orphan books." The Internet Archive's request to be a defendant in the suit states that the proposed settlement "effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc." James Grimmelmann notes that "Google’s extraordinary market power under the settlement will come from its unique lock on orphan works." But by focusing on orphan works, these critics downplay the impact on the real losers in the settlement: the thousands of foreign authors whose books can be exploited with impunity by Google and the Books Rights Registry.
A common assumption among the critics of the settlement is that there are two classes of rights holders. The first are those who come forward and register with the Registry - what were called "active rightsholders" at the Columbia conference on the settlement.
The other class of rights holders are those who fail to opt-out of the settlement and also fail to register with the Registry. The existence of these rightsholders is therefore unknown to either Google or the Registry. It would be a mistake, however, to equate in-copyright but out-of-print works owned by these non-active rights holders with orphans.
Orphan works are those works whose copyright owner cannot be located, either because the current owner cannot be identified or cannot be found. There are many books that would be included in the Google settlement that are true orphans. There are many more, however, whose copyright owners are eminently locatable - but who aren't participating in the settlement.
The largest group of non-active rights holders are likely to be foreign authors. In spite of Google's efforts to publicize the settlement abroad, I suspect that most foreign rights owners of out-of-print books will fail to register with the Registry. There are a couple of reasons for this. For one, they may not know that their book is still protected by copyright in the US. In addition, they may assume that international network of reproduction rights organizations would manage their royalties, and not understand the need to register separately.
The scope of the foreign land grab could be considerable. Some initial estimates suggest that 7 million books could be included in the settlement. Of these it is estimated that 1 million are in the public domain. That would leave 6 milllion in-copyright but out-of-print books. Early efforts to try to understand the nature of the library collections that were being used to build the Google books database suggested that 50% of the works in the libraries were not in English, so it would be safe to say that at least 3 million of the books in the settlement will be foreign works. (Since Google added many European partners after this study was done, the number is likely to be much higher.) Some of these are going to be orphan works - but many more are going to have easily locatable rights holders that have chosen not to be active participants in the settlement. Their royalties are destined for the pockets of the Registry. I am willing to bet that a goodly percentage of the operating expenses of the Registry will come not from orphan works, but rather from foreign authors who do not understand the need to participate in the settlement.
Pamela Samuelson has questioned the representativeness of the defendants in the settlement. If there is an injustice being done in the settlement, it is with foreign authors.