…the deal also would allow Google — and only Google — to digitize so-called orphan works, which has raised some eyebrows in antitrust circles. Orphan works are books or other materials that are still covered by U.S. copyright law, but it is not clear who owns the rights to them.
“Essentially, it gives Google a free pass for infringement for selling all these books,” said James Grimmelmann, who teaches at the New York Law School. “Publishers (who are part of the settlement) would be happy to share the monopoly with Google.”
[…]”We would like the court to say: ‘This is fine theoretically, but these orphan books, they don’t have anyone to speak for them, so let’s take them out of the agreement,'” he said.