Brin makes the same case for fixing the Orphan Works problem that many others have. He’s right, of course, that we need to fix the problem. If Google were really concerned about liberating the world’s information, and not wanting a monopoly, they would be using their considerable resources not to cosy up with the AG, but either to continue to test their fair use argument, or to lobby for real legislative change. But Google is not in the business of information, they’re in the business of advertising, and advertising loves a monopoly.

He misses many of the most important criticisms of the settlement. Among them: that the lack of an adversarial relationship throws real doubt on the legitimacy of the settlement class; that the opt-out regime flies in the face of the Berne Conventions’s “no formalities” requirement (not to mention existing U.S. law); and that the settlement removes any incentive the AG will have to negotiate with subsequent parties (as he says himself, other parties won’t have the same access to OWs) and for Congress to fix the law.

There is also the risk of a unique (because of the monopoly) resource being controlled by one company who is at the mercy of profit. Is Brin really so naive as to think that he’s creating a library that will last forever? Environmental and digital preservation issues aside, they certainly haven’t shown much stewardship over the Usenet archive (see recent Wired story). If the money dries up, why should they pay any more attention to the Books?

If Brin truly wishes there were a hundred others pursuing similar paths, as he says in his Op. Ed., he would be trying to fix the problem for everyone, not just himself. It would go a long way toward convincing me (at least) that the much hailed “Don’t be evil” mantra is anything more than window dressing.