Hello everyone. Today the Center for Internet and---
Society at Stanford Law School filed, on behalf of the
Internet Archive and the Prelinger Film Archives, a
lawsuit asking for a declaration that copyright
restrictions on "orphaned" works -- works whose
copyright has not expired but which are no longer
available -- violates the constitution.
See press release, appended below, for further details
and link to complaint.
Thanks.
Chris Sprigman
For Immediate Release: Monday, March 22, 2004
Center for Internet and Society
Media Release
Contact:
Christopher Sprigman
Fellow, Center for Internet and Society
(650) 725-9451
csprigman<at>law.stanford.edu
Brewster Kahle
Chairman, Internet Archive
brewster<at>archive.org
Rick Prelinger
President, Prelinger Archives
Footage<at>panix.com
Professor Lawrence Lessig
Stanford Law School
lessig<at>pobox.com
_________________________________
ARCHIVES ASK COURT TO FREE "ORPHAN" COPYRIGHTS
Claims System Unreasonably Burdens Speech and Violates
Progress Clause
Stanford, CA - 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:
http://cyberlaw.stanford.edu/about/cases/kahle_v_ashcroft.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.
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