Open Access News

News from the open access movement

Saturday, February 03, 2007

"Stepping on a legal landmine from a previous war"

Daniel Terdiman interviews Brewster Kahle for, January 31, 2007.  Excerpt:

...Recently, Kahle visited CNET's Second Life auditorium for a discussion in front of an eager audience about [Kahle v. Gonzales], as well as about the Internet Archive, Nicholas Negroponte's $100 laptop project and other issues....

How do you deal with the copyright issues [at the Internet Archive]?

Kahle: For the Web, we followed the structure of the search engines and the opt-out system for doing the first-level archiving. If folks write to us not wanting to be archived, then we take them out. For music, we offered free unlimited storage and bandwidth, forever....

With packaged software, our lawyers told us that digital rights management (DRM) would pose a problem under the Digital Millennium Copyright Act (DMCA), so we got an exemption from the copyright office allowing us to rip software and break the copy protection for archival purposes. With books, we are starting with out-of-copyright (works) and wanting to move to orphan works, then out-of-print works, then finally in-print (works). We digitize 12,000 books a month and have 100,000 on the site now for free use and download. But we just had a setback. Larry Lessig brought a suit on our behalf, Kahle v. Gonzales, to allow orphan works to be on digital library shelves. But the 9th Circuit U.S. Court of Appeals just rejected it.

Can you talk more about Kahle v. Gonzalez?

Kahle: Fundamentally, this is an issue for the Supreme Court and the Congress. What kind of world do we want in the digital era? ...[H]ow do we build a digital environment and ecology that allows new works to get created and paid for, preserve them long-term, provide access to the underprivileged, provide a different kind of access for scholarship and journalism and all in the new world. It is not simple. But it is important.

Talk about book-scanning projects currently going on.

Kahle: There are a couple of major scanning projects in this country: Google is leading one, and a large group of libraries and archives are working together on another. Also, there's the Open Content Alliance, which is attempting to keep the public domain public domain, so if a book passes into the public domain, the digital version is not locked up again as a copyrighted work. There are other projects that are putting perpetual restrictions on what can be done with digitized public domain works.

That's a bit scary from my point of view. We need help keeping the libraries open and unencumbered by new restrictions on public domain works....

Who are the natural "enemies" of the Internet Archive?

Kahle: Everyone seems to like the idea of preservation of cultural materials. But folks are nervous about disruptions in commercial practices that are just now getting formed. Libraries and publishing, however, have always existed in parallel. What happened is that some overzealous copyright laws got passed with heavy lobbying from folks like Disney and these are screwing things up. I think of it as collateral damage. Instead of keeping just Mickey Mouse or just the profitable works under copyright for longer, they fundamentally changed the structure of copyright. So the problem we find mostly is not that we are stepping on toes, it's that we run the risk of stepping on a legal landmine from a previous war....