One would think that professional writers would understand copyright law. An orphaned work is one that is still under copyright but the copyright owner is unknown. It is not the same as a document in the public domain.

The problem comes from the fact that the term of copyright has been extended so long (life of author + 75 years, or 90 years for corporate works) that the rights may belong to the author's great-grandchildren who don't even realize they have the right to publish Granny's poems.

So yes, Google now owns by default the copyright on every copy protected work unless one can prove to Google who actually owns the right. And of course, Google also has the right to publish all works in the public domain.

For a company whose motto is "Do no evil" they don't seem to have any compunction against theft.

As far as the good of mankind goes, a searchable database of every published book freely available to the world would the fulfillment of the dream of the Library of Alexandria. It would be the premier wonder of the modern world. This should not trump writers' ability to make a living, but working towards hardly qualifies as evil, and in this case, it hardly qualifies as theft.

It is more akin to squating. If I come across a piece of land and, being unable to find it's owner, plant a field of corn, then I have taken something from the rightful owner. I have removed some nutrients from the soil, created some risk of erosion, but that isn't theft, it's squatting. If the owner never shows up to tell me to stop and I harvest my corn, replant the next year, harvest, plant... at some point the law stops considering me a squatter and says that I own the property. Because it is more important to society that the property be used and create wealt that the government can tax than that the rights of owner who has abandoned it be protected indefinitely.

By the law of this country, laws based on Art. 1, Clause 8 of the Constitution, I and my heirs own the right to publish my writings for a given period of time. This settlement between my unappointed class representatives and Google has sold, without my permission, all my copyrights in my writings to Google when those writings go out of print and Google declares that I or my heirs cannot be found. This isn't squatter's rights--those are designed to help the person who has made an investment in a derelict piece of property gain ownership. This is akin to the National Board of Realtors declaring that they own every piece of property of which the owner cannot be found. If the problem of orphaned works is so pressing, tell Congress to shorten the term of copyrights. (Hey, passing such laws is actually something they have the power to do under the Constitution) Don't just hand people's property interest over to a private company. It's wrong in Kelo v. New Haven; it's wrong here.

To be fair, if the true owner is found they can demand restitution from google if google makes money off their copyrighted work. Property-wise, it depends on how you characterize the property (lost, mislaid, abandoned). I'm not in copyright (spring semester next year, yeah!) but it seems like your characterizing the work as lost as opposed to abandoned or mislaid. Its like the soldier and the broach. The true owner of the broach couldn't be found, so he got to keep it as he had found it. The person who finds something owns it against the rest of the world except as to the true owner of the property. What you're saying seems to abide by that property principle. So, if the true owner cannot be found, and it is lost property, then you have the right of possession unless the true owner can prove it is theirs.

As far as adverse possession is concerned, does that principle apply to copyright? I would assume so, but even then it has to be open and notorious for the period of the statute of limitations. So, Google's use of lost copyrighted material seems to fit the open and notorious use requirement. If they do that for years, then wouldn't the property become theirs?

I'm not a fan of the Kelo case either because of the ridiculous abuse of power that can ensue from declaring anything "for public use", however, the person whose property is taken still gets compensation (even if it is only Fair market value). But, this broad power can be limited by state statute (In NE, I believe you can only take when a property is blighted, and what defines blighted is in a state statute which is assessed by a board), so is it the same in terms of copyright taken for public use? Just curious.

Let's head on over www.googlebooksettlement.com, shall we?

"If you do nothing, you will be bound by the Settlement. If you do not claim your Books, you will not receive any Cash Payment or be able to participate in future revenue from Google’s use of your Books. By staying in the Settlement, you will, however, release all copyright infringement claims you might have against Google for digitizing your Books without your permission."

This isn't adverse possession, where Google gets the rights after open and notorious use of ten to twenty years (depending on jurisdiction). Any adverse possession has to toll from the date of first infringement; according to Google's admission, that date is 2004. In this situation, a group which does not have title -- the Author's Guild, the Association of American Publishers, etc. -- selling the property on behalf of those who did not consent to these agents. We are told that this is mollified by "generously" allowing authors who do not consent to having their rights sold without their permission to opt out of this agreement.

(And since one can't opt out unless one is certain one has rights that Google is about to infringe or gets notice from Google, if Google can't find someone who didn't already know about the settlement, that someone don't get the option.)

Ah! I didn't know that was the settlement agreement! Your point is clearer now!