Lawsuit may shelf Orphan Works Project

The University’s involvement in a national digitization could prove to be short-lived.

Just more than a month after Duke announced its participation in the Orphan Works Project, which digitizes out-of-print books whose copyright owners are deceased or unreachable, the project’s partner, a text archiving foundation called HathiTrust, is being sued on the grounds of publishing written works without the authorization of copyright holders.

“We’ve been greatly concerned about the seven million copyright-protected books that HathiTrust has on its servers for a while,” said Paul Aiken, executive director of the Authors Guild, the group which filed the lawsuit against HathiTrust Sept. 12. “Those scans are unauthorized by the authors.”

The Orphan Works Project involves a network of university libraries, including its founding partner the University of Michigan and others such as Cornell University and Emory University. The project identifies the orphan books contained in the HathiTrust Digital Library, which holds the online collections of more than 60 major research institutions and 9.5 million digitized works.

Though Duke’s involvement with the project was made possible through collaboration with HathiTrust, the University does not expect to be affected by the legal ramifications.

“The action which gave rise to the infringement claim is the reception of digital files from Google in exchange for providing the books that were scanned in the first place,” said Deborah Jakubs, University librarian and vice provost for library affairs. “[Since the University] did not provide any books to Google and received no scans, [Duke] is not in danger of being sued.”

The Authors Guild—a New York based group representing more than 8,000 authors—filed a suit against HathiTrust citing infringement and addressing security concerns regarding the files in the HathiTrust.

The University of Michigan and HathiTrust suspended the project Sept. 16 due to procedural errors, according to a University of Michigan statement. The statement acknowledges that some of the works placed on the orphan works list were in fact still in copyright, with reachable owners.

Jakubs noted that if the Authors Guild wins the lawsuit, HathiTrust will be ordered to pay licensing fees to the author of each respective work. Although the Authors Guild is basing their claim on the rights of the authors, some of them are either deceased or unable to be found.

“[The Authors Guild] seems to hope that an approach to using orphan works that will pay licensing fees to authors is possible,” Jakubs said. “We believe that such a scheme would fail because most orphans are insufficiently valuable to justify payment.”

Kevin Smith, director of scholarly communications at Duke Libraries, is advising HathiTrust on how to refine their orphan works selection process.

“Once a more accurate process is in place, the orphan part of the project should go forward,” Smith wrote in an email Sept, 20. “No digital files have yet been opened, so all the lawsuit means for us is a delay in being able to give access to these works.”

Smith added that he does not believe the lawsuit will get very far.

“Any claim over orphan works seems tenuous,” he said. “[The Authors Guild] is making this case seem urgent [by] asking to impound all seven million files in [the HathiTrust archive] that date from after 1923, and they base that request on the fact that some of those files—they list 62—are [currently] owned by Authors Guild members.”


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