There is long-standing interest in identifying orphan works, books that are subject to copyright but whose copyright holders cannot be identified or contacted. Orphan works comprise a significant percentage of ARL collections, and there is deep interest in making these works discoverable and more accessible. Recently, the University of Michigan announced the initiation of the Orphan Works Project. The focus of the Project is on US digitized books held by HathiTrust, a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future.
HathiTrust provides a variety of secure long-term preservation and, in some cases, access services to the nearly 10 million scans that resulted from Google Book Search and other digitization efforts by research libraries. Digitizing these works has made identifying and locating high quality sources of information—both copyrighted and public domain works—far easier, thereby significantly increasing the value of library collections in support of research, teaching, and learning.
On September 12, 2011, the Authors Guild, together with authors’ associations from Australia and Quebec and eight individual authors, filed suit against HathiTrust and five universities claiming that the making, storing, and providing access to digital scans of copyrighted works is illegal, objecting particularly to the Orphan Works Project. The suit targets Orphan Works Project participants who are also library partners in the Google Books project, leaving out institutions that participated in only one of the two projects. The suit not only asks a federal court to bar HathiTrust and its partners from going forward with the Orphan Works Project, but it goes much further, asking the court to “impound” all copyrighted works in the HathiTrust collection, placing them in a dark archive with no network connection pending any relevant legislation. This would affect roughly two-thirds of the works in the HathiTrust collection. The suit does not seek money damages, but it does ask the judge to award legal fees.