This is an interesting problem related to the automatic renewal and extension of the copyright period.
An “orphan” is a work whose author is difficult or impossible to find and is no longer published or available because it’s not considered commercially viable. Under current copyright law, these works are illegal to use without the author’s consent, but there is no one to contact to get that consent. This is a direct result of changing copyright from an opt-in to an opt-out system. Two archives (libraries are the traditional caretakers of the orphaned works) have filed suit asking that the statutes that extended copyright terms unconditionally be ruled unconstitutional under the Free Speech Clause of the First Amendment.
The basic argument is that the Copyright Renewal Act and the Copyright Term Extension Act prevent, or severely impede, the constitutionally intended acquisition by the public of these works.
Despite the obvious truth of the claim, it appears to be an uphill battle. The District Court in California granted the government a dismissal of the case. They then appealed to the Ninth Circuit Court.
The Ninthe Circuit ruled against Kahle and in the governments favor. A simply amazing, poor decision. There will perhaps be an appeal to the full Ninth Circuit.
Get the details from Stanford CyberLaw.