Library digitization projects - Lawsuit to free "orphan archives" from copyright restrictions -

minow passed along this release: "Today, two archives that post public domain books, films, audio, and other creative works on the Internet asked a federal court to declare that copyright restrictions on orphaned works -- works whose copyright has not expired but which are no longer available -- violates the constitution. The complaint asks the U.S. district court for the Northern District of California to find that a law that extended copyright terms unconditionally -- the Berne Convention Implementation Act (BCIA) -- is unconstitutional under the Free Speech Clause of the First Amendment, and that the BCIA and Copyright Term Extension Act (CTEA) together create an "effectively perpetual" term with respect to works first published after January 1, 1964 and before January 1, 1978, in violation of the Constitution's Progress Clause."This case is about freeing culture from unnecessary and harmful regulation. We will focus on a series of recent changes to copyright law that have failed to benefit copyright owners, but have instead created serious burdens on those who create digital culture," said Christopher Sprigman, a fellow with the Center for Internet and the lead attorney for the Plaintiffs. "In our complaint, we talk about the recent removal from the copyright law of 'formalities' like registration, notice and renewal. That doesn't sound like a big deal, but it is. The disappearance of formalities radically changed the reach and effect of copyright law."

For 186 years, American law limited the grant of copyright to those authors who claimed (through registration) the need for copyright protection, and who renewed that claim after an initial term of protection. In 1976, Congress began to reverse this tradition that reach back 250 years in Anglo-American law. In 1992, the BCIA removed what was left of the renewal requirement for works created beginning in 1964. Though past practice had indicated that over 85% of works created in 1964 would never have been renewed when their term expired in 1992, Congress automatically extended the term of all of these works. This was the first automatic extension of copyrights for works that had not been renewed, breaking with a fundamental aspect of our tradition.

"In Eldred v. Ashcroft, the Supreme Court outlined the conditions under which a copyright
law could be unconstitutional. The BCIA meets the Supreme Court's test," said Larry Lessig, founder and director of the Center for Internet and Society and a professor at Stanford Law School. "By unconditionally extending the terms of copyright, the law has effectively orphaned a great deal of creative work. The BCIA represents a radical break from the tradition of copyright, and we are confident the Court will apply its own rule to free these orphaned works." Professor Lessig argued Eldred v. Ashcroft, a constitutional challenge to the CTEA, in before the Supreme Court last October.

The plaintiffs in the case are the Internet Archive and its chairman, Brewster Kahle, and the Prelinger Film Archive and its president, Richard Prelinger. The archives are dedicated to making public domain works available through their Web archives for study and creative re-use. However, they are unable to clear the rights for "orphaned" works -- books and films that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection. Consequently, a vast amount of content is unavailable to the Internet, despite the overwhelming probability that the work either is in the public domain, or is owned by an unknown rights holder who has no continued desire to exercise control over the content.

"Orphaned films are trapped in legal limbo, where they may disintegrate before anyone gets a chance to see them again," said Rick Prelinger, president of Prelinger Archives. "Automatic copyright extension that nobody asked for prevents archives and collectors from showing them or putting them online for everyone to use. Film is fragile and often doesn't last as long as a 95-year copyright term. Let's find a way to get these abandoned works into the hands of educators, students, filmmakers, and the public."

"Libraries traditionally have made out-of-print books available to the public. Now, students and others look online for works and are denied access to out-of-print materials because the laws have not been updated to enable them to be posted on the Internet. If we want to continue to have libraries serve the vital function they always have, we have to find ways to allow them to post orphaned works online," said Brewster Kahle, chairman of the Internet Archive. "The Internet Archive would love to be able to scan in all orphan books so that people everywhere can access and read them. But under current law, it is too expensive, and sometimes impossible to find their authors and clear their rights-even when we know that for most of these books, the author would gladly agree to our posting them."

Kahle v. Ashcroft website: shcroft.shtml
About the Center for Internet and Society:

The Center for Internet and Society (CIS) is a public interest technology law and policy program located at Stanford Law School and a part of Law, Science and Technology Program. The CIS brings together scholars, academics, legislators, students, programmers, security researchers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, privacy, public commons, diversity, and scientific inquiry. The CIS Cyberlaw Clinic gives Stanford Law School students an opportunity to work with clients on cases and legal projects that involve questions of technology, law and the public interest. shcroft.shtml"