Orphaned Works

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.

9th Circuit rejects copyright law challenge

Simply amazing. The 9th Circuit ruled against Kahle and says that no constitutional review of the Copyright Act of 1976 is necessary.

From 1790 until 1976, to copyright a work you would have to register your work, print copies with a copyright notice, potentially renew your copyright later, etc. You had to take action, in a fairly clear manner, to have a work copyrighted (an opt-in system).

After the 1976 Act, all works are copyrighted, without registration, without notice, without renewal. Protection is automatic. You must take action, but not very clearly laid out, in order to renounce your copyright and give your work to the public domain (an opt-out system).

For the court to rule that this fundamental change doesn’t even deserve review for constitutionality? Just plain weird.

To me, that seems just the same as if Congress had said, “From now on, plaintiffs are guilty until proven innocent. The burden is no longer on the prosecution to prove you did it, but upon you to prove you didn’t.” Someone brings suit, arguing that it should be reviewed for constitutionality and the court says, “Sure Congress can do that, they didn’t take away your right to a fair trial. It’s still staying in the standard court system. It’s not like they’re deporting you to secret, foreign prisons with no trial. There’s really nothing here to review.”

Well, anyway, here’s the info at the Stanford CyberLaw.