The opinions on this issue that I have read generally range from the gung-ho "Something must be done. This is something. Therefore, this should be done" to the somebody else's problem philosophy "This is a job for government/congress/etc.". The judge's written opinion is the latter.
Darnton says "This provision made Google and its partners effective proprietors of works they had not created." This, I believe, is the major roadblock for many (old-fashioned) creators: you are making money off from poor writers. Advocates of this approach fail to acknowledge the immense costs of creating and maintaining such a system. And how much money do the authors of orphan works make now? Zero dollars.
The European efforts cited are AFAIK were reactionary to Google's scanning program. One should remember that not all such grandiose European programs work (e.g. what happened to Galileo GPS system?) because of the major fracturing, e.g. France's Gallica has ~1.7M books but they seem to be mostly old, out of copyright works.
Or the Library of Congress - which is already the public library of the US.
Sure they have http://www.loc.gov/library/libarch-digital.html
Which is "ok". But it's not really searchable, the interfaces are clunky, and I can't really just go find say...the Wizard of Oz series, or review historic maps of my state without going through dozens of clicks in an interface that's taking up about 1/6th of my screen real estate (and only downloadable as a jpg or an obscure geodata format called MrSid).
It's obvious that a ton of thought has gone into organizing the data, but not much into retrieval.
By comparison, it took me .16 seconds to find the Wizard of Oz books...and oh, if I care, a play in three acts, some song books, and other odds and ends.
In other words, when was the last time something from the LOC appeared as a result of your Google search - such as the copyright data from Webvoyage? For example google("wonderful wizard of oz" copyright) and try to find this highly relevant information from the LOC [http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=wo...]
Aside on MrSid - if you are archiving a map for reference as a map rather than clip art it is ideal, and archiving maps for use as maps is what the LOC does. On the flip side, Google's goal is to sell advertising for companies like "worldsbestmaps.com" and so returning useless (from a map making perspective) results increases the value of Google ads to those companies.
Just because you know a way of making money from something, it doesn't mean you need to have that thing... For example, I know how to make money with developers that might be doing nothing important while working for Google or some other company. Should I sue them to have access to these developers?
Even if a book is making zero dollars, it doesn't mean that somebody else should be allowed to make money out of it.
They're note making money from the book, but from making the book available. In other words, they're actually doing work on it while the original author apparently just doesn't care any more.
If the author treats their own work like garbage and abandons it, I see no reason why they should be able to complain when someone recycles it into something useful and makes a profit.
Can you name any other object that one might abandon without treating it as garbage? An abandoned house may be claimed by squatters. Abandoned goods are recycled or trashed. Abandoned cars are sold or junked.
Why should books be different? Why should we not conclude that they have abandoned their rights? Why should we respect it when, after someone does work to turn their words into something valuable, they show up to assert rights?
I honestly don't see how this is different from someone wanting a cut of the money made from recycling garbage they had no intention of recycling. If it was art, if they truly loved it, they would never be so crass as to abandon it until there was money to be had. If their art was like their children, orphan works would be just that. Their author abandoned them on a street corner somewhere in a bad part of town and didn't care one bit about them until they heard they were a success, after which time they returned to beg money off them.
On the other hand, I suppose that the alternative, that is having their works die of obscurity, is a fitting punishment for authors like that. It's their work I feel sorry for.
And I speak as someone who makes his living from copyrighted works.
Oh, btw Goole Books snippets are getting injected into my search results more and more often, so it looks like the idea of searching through the books isn't dead at all.