Both Google and the libraries considered this a wonderful thing for themselves and their users. Whoopee--lots of free books readily available in digital form. Unfortunately, this bright idea ignored copyright law, the way publishing works, and the rights of authors.
Project Gutenberg had already been digitizing old texts and making them available freely, and so had a few others, but those projects were confined to books clearly old enough to be out of copyright. Google and the new libraries involved had no such scruples. They considered that all books were fair game--including those that already had digital editions produced by their publishers (a clear conflict with copyright laws--those publishers already had the exclusive right--granted by contract--to distribute the electronic edition.) Google claimed that it would allow only partial downloads of books still in copyright...unless they were "orphaned" works. Google was sued by a number of writers and writers' organizations for the initial breach of copyright, and the initial settlement was overturned. The institutional libraries--we now know--had no such intent. The University of Michigan (and some other universities) are preparing to distribute free full downloads of works Google scanned (even though Google had no right to scan the works in copyright, and the library had no right to give books in copyright to Google to scan.) These works are now titled "Hathitrust" and are the subject of a new suit by aggrieved writers.
At the root of Google's bright idea is the assumption that all books should be available to all readers at no or minimal charge all the time--an assumption which strikes at the root of a writer's ability to be paid for his/her work and a publisher's ability to be paid for the work the publisher contributes. It directly conflicts with copyright law, under which a writer has the right to control the publication and distribution of his/her own work. But feeding that assumption is another--the presumed existence of hundreds of thousands of "orphan" works, works still protected by copyright, but out of print, and whose copyright owners--the writers or their heirs--cannot be found to ask permission.
There are several things wrong with this notion. First, current books may go in and out of print (be temporarily unavailable for order) between reprintings, though the author is easily found. Like most writers, I've had books go out of print for a few months--or longer--and come back into print. Second, even when books go out of print for good with one publisher, they may be picked up later by another--or the writer may self-publish (now increasingly common with self-pubbed ebooks and POD. Several ad hoc writers' groups, such as Backlist eBooks, as well as individual writers working on their own, have released e-editions of out of print works...works still clearly protected by copyright. I know dozens of writers who are both easy to find and are putting up their own backlists. (The only reason I'm not is that my books are still in print.) Third, the presumption that writers of out-of-print books are "virtually impossible to find" has allowed these would-be thieves an excuse to simply not look for the writer of any book they choose to make use of. Are there some copyright holders who can't be found? Yes. But the evidence is clear that those who wish to profit off someone else's books aren't looking for those who are alive, members of writers' organizations, still publishing, and whose books may even be still in print. Many such writers protested Google's actions, including me.
Like every other writer, I have a dog in this hunt. A library donated to Google--and Google scanned--most of my books. All were under copyright protection. All were currently in print from publishers easy to locate. As for the "virtual impossibility" of finding the author: a Google search on my name brings up first my main website, then the section of that website devoted to the Paksworld books, then a Wikipedia article about me. My website has come up first in a Google search on my name for at least a decade. (Yes, I checked.) In other words, a very cursory, minimal search would have found me. It is ridiculous for any librarian in the country or Google to claim that I was "virtually impossible" to find or contact. It is equally ridiculous for any librarian or Google to claim that my books were hard to find or purchase. I am not the only writer whose in-copyright and in-print books were taken by Google...nor the only one whose website and contact info were easy to find.
Evidently, no one looked: not the librarians who took my books off the shelf and sent them to Google for scanning, and not Google. No contact was ever made asking my permission to use my work this way. Instead, someone at some library gave Google the books to scan--without ever considering my rights--and Google scanned them with the same lack of concern. When I found out about it, I went through the laborious process (it took several days because of Google's clear intent to make it difficult) to refuse Google permission to allow the scans' use. Google indicated it would "probably" not use the scans for which permission was refused, but that was the best I could do.
Let's be clear here. As the copyright owner (the person who created the works) I have the right to license publication and distribution--or not--throughout the life of the copyright. I have the legal right to decide who--if anyone--can publish, and the legal right to terminate that right-to-publish under whatever contract I signed to allow publication in the first place. When one publisher finds a book not profitable enough and lets it go out of print, I have the right to end our contract and either let the book lapse or license another publisher (including myself.) I've been through rights-reversion with one publisher (and the next picked up the book and it's still in print.) Many writers have been through this. But should a writer prefer to let a book go completely "still"--remain unpublished--that's the writer's legal right. No one has a right to sneak into the writer's house and make off with a manuscript or a computer file and publish it...and no one has a right to take a book off the shelf of a library and make and distribute copies (paper or electronic) if the work is still under copyright protection. No one. Not a library. Not a corporation. Not an individual. It does not matter if there's only one copy in one library and there's a line out the door wanting to read it: the writer has the right to withhold permission for another round of publication (most of us would rather see a new edition--but I can imagine a circumstance in which a writer wouldn't. And it's the writer's choice.)
The difference between Project Gutenberg and other smaller projects that digitized out-of-copyright old books is this: money. Google saw a profit in holding a huge library of digitalized works, which it could make available for download at minimal cost--because of the ad income it could generate from clicks on the pages that displayed a text. Once it had the scans, it could charge for the downloads, or simply let the ad-clicks generate it. Google never planned to compensate writers for its use of their work--it planned to profit from their work without including them in the income stream. Libraries see profit in holding the Google scan, because they can either charge for downloads or for time on the computer in the library where patrons read or gain prominence (and perhaps funding) through having such a resource available. Like Google, libraries (who have long profited from writers' understanding that having their book in a library could attract readers who might later buy their books) had no intention of including writers in the income stream derived from allowing downloads.
All works protected by copyright should be summarily removed from the Google scan files, including those now held in the University of Michigan library and all other libraries involved. The courts should establish what is a sufficient search for the authors of books in copyright before any so-called "orphan" books are put back into the scanned list. The search should be extensive enough--in both range of search and duration--so that writers have a fair chance of recovering their work if they wish. There should be a provision for writers who were not found initially to remove their work later, if they wish. The cost of such search should be borne entirely by those who desire to find them and the complaints of Google, libraries, and their ilk that this will be too costly should be taken with an entire boatload of salt. Why should they bear the cost? Because they want the profit. I spent hours--many hours--trying to be sure that I had found every book of mine on the Google scan and correctly navigated their tortuous path to refusing permission for its use. That's unfair. They acted illegally in the first place, and they should bear the cost of fixing their blunders.
If you are a university librarian now holding the Google scans...I call on you to do the right thing and remove (if you can) or refuse to download to patrons any book still in copyright. If you think the book is permanently out of print (not just between printings) do an internet search for the writer and contact the publisher. If you are using the Google scan to fill out your own collection...buy a copy of the books that are still in copyright protection and in print. (I know--budget concerns. Writers have budgets too, almost certainly smaller than yours. Feed the writer.) Because otherwise, you're stealing from writers. Like Google, who probably came to you with this lovely, alluring, tempting idea, you're breaking copyright law. I've supported libraries for decades...but I can't support this.
If you're part of a university administration (and yes, University of Michigan, I'm looking at you!) you should be aware that your library's participation in the Google project and the use of its scan violates copyright law and you have a responsibility to correct these behaviors. Demonstrably, copyrights have been violated--mine, among others. Demonstrably, whatever "safeguards" were supposed to be in place to protect writers' interests failed. University administrators should ensure that the libraries under their umbrella are held accountable for their actions with respect to copyright law and the rights of authors.
If you're a university student or faculty member who is planning to use the works in "Hathitrust" through your university library, you should be aware that many of the works therein are not there legally: they were obtained without the writer's permission (and permission was not even sought) and their use violates copyright. Their presence is not the same as a book on the shelf...at some point that physical book represented a sale, from which the writer gained something (maybe only a few cents, but something.) Writers have not been, and will not be, compensated for the theft of their work that is now in "Hathitrust." You will be told these are orphaned works, that the writers cannot be found. That is a lie. No one looked. So please: take a look at the titles, authors, publication dates. Do a little research yourselves. If you see a writer name you recognize, that you're a little surprised to find in a group of supposed "orphans"--do a quick internet search and if you find the person, let your librarian know. And let the writer know.
NOTE: EDIT ADDED TODAY. The Authors Guild, checking to see if some of the supposedly "orphan" works really were, found that a bestselling, live, easily located author's work was in the list of "known orphans" in the Hathitrust. Someone sent me this info overnight, so I'm posting the link here. Note that the approach to finding the "impossible to locate" author was exactly what I'd suggested: Google on the name and a book title and go from there.