Some critics believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree. First, all of these remedies will remain available (to the extent they apply in the first place) if the copyright owner exists and is findable.
I ask you, How would we (Americans or Britons) feel if Baidu in China --or any other search engine-- did as Google and the Libraries did? How would we feel if the works of any American author who did not follow the news in Chinese were to be legally considered "orphan works"?
If I received an email in Chinese from a scrupulous Chinese digital publisher, would I read and respond to it?
Would it be reasonable to expect every working author to cut and paste every foreign language "spam" filter message to an online Translate site?
I cannot recall if the Google Settlement assumed that all foreign-authored works were "orphan", but digital works can be published worldwide, yet national lawmakers only protect their own author citizens. (Or don't!)
For example, the British Public Lending Right only pays a small royalty on British Library loans to resident British authors, who can produce a street address and a recent utility bill with their own name and address on it. Presumably, books by all other authors in the world are loaned out without any PLR payments made by the British lending libraries.
The New York Times editorial is here.