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Digitizing the orphans

Sometime later this year or early next year, in two different courtrooms in the Federal Courthouse in Manhattan in New York, two cases will be decided that could greatly affect how easily and how readily researchers, including genealogists, can access books online — especially those books that fall into the category called “orphan works.”

Those are copyrighted works — books, plays, photos and the like — where the copyright owner can’t be identified or located.1 There’s been legislation pending for years to come up with a way to deal with the problems posed by orphan works, but the courts seems likely to have to deal with the issue first.

That’s because the Authors Guild is suing on behalf of all copyright holders to stop the digitization of works for eventual online access — including all those thousands, perhaps millions, of orphan works.

In one suit, the Guild is suing Google, digitizer of all those Google Books.2 And in the other, it’s suing HathiTrust, a consortium of university libraries that are using Google’s services and digitizing their book collections.3

In both cases, the Authors Guild alleges that the copyrights of authors are being violated by digitizing the works regardless of the use that’s made of the digitized copies thereafter. That the mere scanning of the works and their storage digitally is a copyright violation. And, of course, that any distribution of the copies on the internet is the worst part of the whole deal.

There are a number of problems with the Authors Guild allegations in both of these cases. First, of course, the simple fact is that some of the books being digitized are out of copyright. Although all works published in the United States before 1923 are out of copyright, a large number of books published after 1923 are out of copyright as well.

That’s because some of them were never marked with a copyright notice when such a notice was required, or never registered with the U.S. Copyright Office when that was required, or a copyright wasn’t renewed when renewal was required. There are a number of reasons why a copyright could have expired.

Any work that’s out of copyright can be copied and redistributed. Period. That’s the law, here in the U.S. and around the world. It doesn’t matter if it’s reprinted in hard copy or published on the internet. If it’s out of copyright, it’s fair game.

HathiTrust in particular is carefully checking every book’s copyright status and has discovered that a large number of the works it had segregated as copyright-protected are no longer protected.

Second, one of the reasons for the digitization projects undertaken by Hathi Trust is the preservation of volumes that are otherwise simply not replaceable. They’re out of print and they’re unlikely ever to be reprinted. We’re not talking about print-on-demand products here. We’re talking about books that were typeset years, perhaps decades ago, and there’s not enough demand for a new edition ever to be printed again. It’s hard not to see preservation as a fair use.

Third, a good many of the authors whose works are being digitized simply don’t care if Google or HathiTrust makes copies, and a good many of those don’t care if the works are made available on the internet, either to groups of researchers associated with a particular college library or even to the general public. And for those works, where the authors aren’t complaining, why is digitization a problem at all?

But the big problem here is that a good many of the works being digitized are orphan works — still in copyright, yes, but with the owner of the copyright or his or her whereabouts unknown today.

Here’s an example. On 29 June 1936, my father’s cousin Alfred Benschura received a copyright for a two-act play titled Blessings of the Gods.4 There’s no indication it was ever published, so it would remain in copyright until the year 2030 — 70 years after Alfred’s death in 1960.5

Unless I’m very much mistaken, my brothers and sisters and I are Alfred’s heirs — his closest surviving relatives — so we now own that copyright. Without the services of a diligent genealogist, nobody interested in that play would have been able to identify us as Alfred’s heirs. And I’d be willing to bet my entire 17-cents life savings that not one of us would mind if Google and HathiTrust digitized it and featured it in their collections.

We wouldn’t even have known about it if I hadn’t been trying to chase down whatever happened to Alfred’s younger brother Willy6 and gone off searching for any reference to any human being on the face of the earth by the name of Benschura.

Another example is a family history self-published in 1972 by a distant cousin in my Baker line. It’s out of print, the cousin has long since passed on, I have no idea where his only son is located today, and I can’t imagine for one moment that that son or any grandchild or great grandchild would mind one bit if that book was digitized and made available.

But the Authors Guild minds. It doesn’t want Alfred’s play or cousin Elma’s book digitized and certainly doesn’t want them put on the internet simply because they’re copyrighted. The fact that there doesn’t seem to be a particular copyright holder who shares that concern is getting lost here.

Where these cases will end up is anybody’s guess. A settlement was reached once in the Google case but was scuttled by the judge assigned to that case. (A different judge is assigned to the HathiTrust case.) And Congress seems totally disinclined to address any of these issues, least of all the issues posed by orphan works.

Those of us who have welcomed the ability to access works that can’t be purchased can only watch and hope that, for once, we don’t come away shaking our heads, convinced once again that “the law is an ass.”7


  1. See generally “Orphan Works,” U.S. Copyright Office ( : accessed 4 Sep 2012).
  2. See Complaint, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia ( : accessed 4 Sep 2012).
  3. See ibid., Complaint, The Authors Guild et al. v. HathiTrust et al.,, 11 CV 6351, U.S. District Court for the Southern District of New York.
  4. U.S. Copyright Office, Catalog of Copyright Entries, Part 1, Group 3, Dramatic Compositions and Motion Pictures, 1936 (Washington, D.C. : U.S. Government Printing Office, 1937), 9: 183.
  5. “California Death Records,” database; entry for Alfred Benschura, 2 September 1960, ( : accessed 31 Aug 2012).
  6. Judy G. Russell, “Where’s Willy?,” The Legal Genealogist, posted 1 Sep 2012 ( : accessed 4 Sep 2012).
  7. Charles Dickens, Oliver Twist (London : Richard Bentley, 1839), 279; digital images, Google Books ( : accessed 4 Sep 2012).
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