Google is committing copyright infringement. This is clear and simple. They even admit to this. Their settlement is an blanket settlement that any offer of an 'orphaned' work. So that if an author of an orphaned work was to be found, the amount of money paid to compensate the author is already set. Unless the author explicitly opts out of the program within a set period of time.
So suppose you wrote a book. And being the Blackadder, your book does miserably and you forget about it and move on with your life. Now suppose 20 years later, your book gets a cult following. Its out of print and for some reason they couldn't find you hence your book is considered an 'orphan'.
Guild member or not, if this agreement holds water, then you were automatically opt'd in.
You would , under the agreement, take pennies on the dollar for their willful act of copyright infringement.
Even if they were to 'cease and desist' they still committed an actionable tort. That is that you can still sue them to recover damages for their prior act of copyright theft. The damages are huge. (Hence the lawsuit and the 'settlement'.)
The interesting thing is that if you are *not* a guild member, then the guild does not have the legal right to enter in to a contract on your behalf and Google's agreement wouldn't hold water.
You could sue Google, but it would be very expensive... you'd need a lawyer willing to work on contingency.
It gets really interesting when the author dies and the book isn't mentioned in his estate, or that they couldn't fing the author's estate and who now owns the copyrights to the books. This is what they are counting on. (This would be an 'orphaned' work in the truer sense.)
There was an excellent article on copyfraud printed in the reg not to long ago.
I for one think its a great thing that the DOJ is getting up off their arses on this one!