• by Wendy Davis , Staff Writer @wendyndavis, September 19, 2011

Three years ago, Google forged a deal with authors and publishers that would have allowed Google to sell "orphan works" -- or books under copyright but whose owners can't be found -- without risking liability for copyright infringement.

That agreement drew objections from a broad array of parties ranging from potential rivals like Amazon to watchdogs like the Department of Justice. All said they were afraid that Google would end up with a monopoly over orphan works because it, alone, would be able to sell them without fear of lawsuits. U.S. District Court Judge Denny Chin in New York eventually nixed the deal, partly out of those concerns.

Despite the criticisms, some advocates said the deal would have benefited the public by giving people access to out-of-print orphan works that otherwise were only available at used book stores. The theory was that no publisher would risk printing new copies of those books if doing so could result in damages of $150,000 per infringement.

Now, however, new information turned up by the Authors Guild challenges the premise that "orphan works" will remain unavailable without a change in the law.

Last week, the Authors Guild blogged that copyright owners had already been found for four of 166 books that had been listed as orphan works by the Hathi Trust -- a joint digital book-storage project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University. The news came shortly after the Authors Guild sued the universities and Hathi for copyright infringement. The lawsuit argues that the universities unlawfully made digital copies of millions of books, and that they plan to start offering downloads of "orphan works."

Onet of the supposed orphan works on Hathi's list was "The Lost Country," a book by J.R. Salamanca that was made into an Elvis Presley movie. The Authors Guild said it only took a few minutes of research to locate Salamanca -- who has lived in Maryland for decades and is a professor emeritus at the University of Maryland. The group also found a telephone number for Salamanca's agent through an online directory, contacted him, and learned that the author had just arranged to release one of his old novels as an e-book.

"If HathiTrust's researchers can't locate a bestselling author with a literary agent, an author who's also a retired professor from a major East Coast university, how are they going to locate authors in other countries?" the Authors Guild asks.

The information uncovered by the Authors Guild clearly is a big embarrassment for the universities. It also could put the kibosh on any deals to loosen copyright restrictions on orphan works, blogs New York Law School professor James Grimmelmann.

"Looking to the broader picture, these revelations will discredit other efforts to make genuine orphan works more accessible," he writes. "No one will ever be able to make the orphan works argument again without opponents bringing up the HathiTrust orphans that weren't. Copyright owners will always regard such efforts with suspicion, as a pretext just for distributing the books, copyright be damned."