Oooof! Talk about making a BIG, public mistake.
HathiTrust's new Orphan Works Project proposed to do due diligence on works, then post them on the HT site for 90 days, after which those works would be assumed to be orphans and would then be made available (in full text) to members of the HT cooperating institutions. Sounds good, right? (Well, maybe other than the fact of posting the works on a site that few people even know about...)
The Authors Guild blog posted yesterday that it had found the rights holder of one of the books on HTs orphan works list in a little over 2 minutes using Google. (It's hard to believe that they didn't know this when the suit was filed on September 13 -- this is brilliant PR, if I ever saw it.) They then reported finding two others.
James Grimmelman, Associate Professor at New York Law School and someone considered expert on the Google Books case, has titled his blog post on this: "HathiTrust Single-Handedly Sinks Orphan Works Reform," stating that this incident will be brought up whenever anyone claims to have done due diligence on orphan works. I'm not quite as pessimistic as James, but I do believe this will be brought up in court and will work against HT.