Open Access News

News from the open access movement

Monday, January 14, 2008

Setback for solving the orphan works problem

Wendy Davis, Copyright Protection Stymies Online Archive, Online Media Daily, January 9, 2008.  Excerpt:

A campaign to make it easier to create online archives of books, films and software was dealt a setback this week by the U.S. Supreme Court, which declined to hear a case about the copyright law's constitutionality.

In the case, Internet Archive founder Brewster Kahle challenged the copyright protection given to so-called "orphan" works, or material for which the owner can't be found. Currently, if Kahle or other Web companies post such material, but the owner later steps forward and sues, the companies can't defend themselves on the grounds that they couldn't locate the owner.

Kahle, represented by [Lawrence Lessig and] the Center for Internet and Society at Stanford, had hoped to change that by arguing that the law protecting orphan works--passed before widespread Internet access--violated the First Amendment.

"The freedom to cultivate and spread our culture, enabled by these technological changes, is now significantly restricted by unnecessary legal regulation," Kahle argued to the federal appellate court. The 9th Circuit ruled against him last year....

Sometimes books and the like have been out of circulation for so long that the actual owners don't even realize they have a legal claim to a potentially valuable intellectual property right.

Legal experts say that locating the copyright owners in these situations is often a daunting and expensive task. "There are works that are locked up under copyright law where it is cost-prohibitive to find the owner and ask him for permission," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law. In such cases, Goldman says, no one benefits by the current regime, which exposes anyone who posts orphan works to liability for copyright infringement.

The U.S. Copyright Office also recognized that the current system is problematic. "There is good evidence that the orphan works problem is real and warrants attention," states a 2006 report by that office.

Also see Lessig's reflections on the defeat and Aaron Swartz's observations of Lessig's oral argument.