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Appeals Court Shoots Down Copyright Challenge

The case impacts how out-of-print and orphaned works may, or may not, be viewed online.
The U.S. 9th Circuit Court of Appeals has rejected an effort by online archivists to challenge the federal law that automatically extends copyright protection for out-of-print and orphaned works.

The case is controversial because major libraries are coordinating efforts with Google, Yahoo, Microsoft, and other groups to scan old books and make them freely available to anyone using the Internet.

Prior to the Copyright Renewal Act of 1992 (CRA) and the Sonny Bono Copyright Term Extension Act (CTEA), out-of-print and orphaned works -- a work for which no copyright holder can be reached -- would enter the public domain were their copyrights not renewed, provided they were created before 1978.

Beyond extending the term of copyright protection, these two laws changed the copyright renewal procedure for works created prior to 1978 from an "opt in" system to one that is "opt out." Copyrights thus are now renewed automatically to the maximum term allowed unless the copyright holder declines such protection.

The plaintiffs, Brewster Kahle of the Internet Archive and Richard Prelinger of Prelinger Associates, filed suit in 2004 (Kahle v. Gonzales) seeking to overturn the automatic renewal provision on constitutional grounds.

Kahle, through the Internet Archive, offers Internet users free access to books, films, and other public-domain media. Prelinger, through the Prelinger Archives, maintains a collection of "ephemeral" (amateur, advertising, educational, industrial, and documentary) films produced between 1903 and 1990, most of which are in the public domain.

The plaintiffs make similar claims to those made in Eldred v. Ashcroft to the effect that the CRA and the CTEA establish a perpetual copyright despite the Constitution's Copyright Clause which establishes copyrights for a limited time.

The U.S. Supreme Court didn't accept Eldred's argument against extending copyright terms in 2003 and the appeals court took a similar line. "Despite Plaintiffs' attempt to frame the issue in terms of the change from an opt-in to an opt-out system rather than in terms of extension, they make essentially the same argument, in different form, that the Supreme Court rejected in Eldred," the ruling states. "It fails here as well."

Yet Kahle points out that the court failed to address the crucial issue before it. "The base question that whole thing revolved around was part of the Supreme Court's Eldred ruling, which is that 20 years extension wasn't enough to violate the First Amendment," said Kahle. "But if you change the 'contours of copyright,' it does. The question in this is case is whether going from an opt-in to an opt-out changes the contours of copyright."

The Supreme Court's ruling in Eldred v. Ashcroft established a change to the contours of copyright as criteria for limiting copyright law to accommodate the First Amendment. The judge failed to address that issue, according to Kahle. "I think he just punted," he said.

University of Virginia Law School professor Christopher Sprigman makes a similar point in a blog post about the ruling. "Judge Farris's 8-page opinion for the 9th Circuit panel is simply indefensible," he wrote. "I had the strong impression at oral argument that the panel had not understood (or perhaps even read) the briefs we or the government had submitted, and was in any event not particularly interested in the real issues in the case. By my lights, the opinion confirms this."

The problem with this ruling, as Kahle sees it, is that it puts the Internet at risk. "Things on the Internet or things we want to put on the Internet are orphaned works," he explained. "They are things that were just never intended to be published by a major publishing house or movie studio. By gumming up the way society works with copyright law, which was designed for a very specific industry, by flipping it in 1976 to cover everything, ever, it puts the whole Internet enterprise on shaky ground. And now is our chance to declare the Internet part of real culture. We may be running into some judges who are just from a different era."

Kahle expects to appeal the ruling, and the issue of unchecked copyright law may end up before the Supreme Court yet again.

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