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Tuesday, January 23, 2007

Defeat for early transition to public domain for orphan works

Quinn Norton, Kahle v. Gonzales: 9th Circuit says copyright orphans stay orphans, Wired News, January 22, 2007.  Excerpt:

In a move that's a blow to the U.S. movement to reform copyright law, the U.S. 9th Circuit Court of Appeals ruled against the Internet Archive's Brewster Kahle, in his lawsuit to allow orphaned works into the public domain.

Rejecting the argument of Larry Lessig, the court decided the case was too  close to Lessig's Eldred copyright suit of 2002, and that's settled business:

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. It fails here as well....

Back in 2004, Kahle and Perlinger sought the help of the Stanford Cyberlaw Center to sue for an opt-in system on copyright of orphaned works. This would mean that to keep the work in copyright, someone would have to come forward and claim it through registration of some sort. Larry Lessig argued the case last November 13, 2006.

They believed that there was a First Amendment issue with works that sought to build on orphan works and that without the formality of opt-in, and that the system was creating a de-facto in perpetuity or near enough as make no odds perpetuity....

9th Circuit said no dice on either argument.  From here, Lessig could seek en banc review by a larger panel of judges.

Update. Here's a comment by Brewster Kahle, the plaintiff:


We argued that the "contours of copyright" had changed in 1976 by going from an Opt-in system to an Opt-out system and therefore the test the Supreme Court set out in its Eldred ruling (20 year extension is not enough of a change, it must change the "contour of copyright") is met and therefore the 1976 copyright act warrants First Amendment review.

In other words: "you have to put a (c) on a document and send it into the Library of Congress" (copyright of Thomas Jefferson from the founding) to a "you get copyright on every scribble and spew whether you want it or not, and, oh, it usually lasts over 100 years" (copyright sponsored by Disney circa 1976) has been ruled not a "change in the contours of copyright" according to Jerome Farris of the 9th Circuit.


So all spammers would be glad to hear that this court ruled that going from Opt-in to Opt-out is not a big difference. As I am not a lawyer, I must be missing something, but this does not seem to be good judging.

[Some links]

Update. Andrea Foster wrote a short article on the case for the January 24 Chronicle of Higher Education (accessible only to subscribers). One new piece of info:

Anthony Falzone, executive director of the center's Fair Use Project, said the archivists will probably ask for a rehearing of the case before a full panel of the appeals court's judges.

Update (1/25/07). Finally, see the comments of Lawrence Lessig, who argued the case for Brewster Kahle and the Internet Archive.

Kahle v. Gonzales was decided Monday. After the oral argument, the result was not a surprise. The reasoning of the opinion, however, is. (I’m going to restrict these comments to part I of the opinion).

A clue that we were in for this sort of surprise was the question asked again and again by Chief Judge Schroeder, how was this case different from Eldred? This was one of those “huh?” moments in the argument. For sure, there was one similarity — I was arguing this case, and I argued Eldred. But beyond that similarity, the cases were plainly different....

Our claim in Kahle was fundamentally different. We were not arguing that First Amendment review should apply to a 200 year old tradition. We were instead asking that First Amendment review be applied to a radical change in that tradition. Beginning in 1976, Congress had changed perhaps the most significant tradition in American copyright law when it moved from an opt-in to an opt-out system. For 186 years, copyright applied only where the copyright holder took affirmative steps to claim it. That requirement profoundly affected the scope and reach of copyright. Our claim was not that Congress couldn’t make such a change. But instead, it was simply that any such change must be tested under the First Amendment....