Kahle v. Gonzales is an attempt to reverse the change of copyright protection in the United States from an opt-in system to an opt-out system brought by the Copyright Renewal Act (CRA) of 1992 and the Sonny Bono Copyright Term Extension Act (CTEA). Plaintiffs, who were using works that had fallen into public domain, claimed the change triggered a First Amendment free speech claim, and that the extended terms violates the Copyright Clause’s “limited times” provision. This case is couched as an attempt to free orphan works, but more likely, the court pointed out, was an “attempt to tangentially relitigate [Eldred v. Ashcroft].” (the court may have thought from the beginning that this was just Prof. Lessig trying to re-try Elred. While I respect the work that the EFF is trying to do, I wish that they would stop helping. They keep losing cases that they should have won by making outragous arguments, and in the process, set precedent after negative precedent.)
On the first amendment claim, the court said that traditional safeguards on free speech, such as such as fair use and the idea/expression dichotomy, were still intact and protected the public’s free speech interests, and first amendment scrutiny was not triggered.
On the limited times claim, the court said that the Supreme Court weighed in on this a few years ago in Eldred v. Ashcroft, and clearly said that the extended terms and change in renewal requirements was not violative of the “limited times” requirement of the Copyright Clause.
The original suit had four claims, and, as the one regarding the Berne Convention Implementation Act (BCIA) is not mentioned, I assume it was not appealed.
Bravo Ninth Circuit. The main issue here was the fact that Prelinger Associates, Inc. (as well as projects like the “Million Book Project” by The Internet Archive, Carnegie Mellon University, and the National Science Foundation, and “Google Books”) sought to digitize old books and felt that cutting off the stream of material entering the public domain that they had been waiting on was wrong. All such projects would like a free pass to violate the copyrights of others because for “orphan works,” because they feel it is just too hard to track down the rightsholder and get permission. For an unlabelled black and white photograph, I understand the frustration (not the right to trample the rights of others, only the frustration)–but for books that contained all the relevant information in the front cover to begin with, Come on.
My law review article on orphan works, as well as my solution to the entire problem, is being submitted to various journals at the moment. I will point you too it as soon as it goes to print. All of the book scanning projects say the books that they are collecting are commercially unsuccessful, and thus are not available at bookstores. However, they all ignore how the marketplace might solve this dilema on its own, in light of the long-tail effect. Just like music back catalogs that are making a comeback, combine the possible aggregate revenue and print on demand technology, and these books could actually be commercially viable. Actually, there is an argument to be made that an entire collection of books would only have to recoup the cost of storage media (harddrives) to become viable, and that individual books would not have to be viable themselves. Cheap storage + Amazon.com + Print on Demand + Long Tail = A very profitable business.
In its entirety, the Kahle v. Gonzales (has also been cited as Prelinger Associates, Inc. v. Gonzales) decision follows:
Filed under: 2007 Copyright Cases, Copyright, Fair Use, Orphan Works, Public Domain | 1 Comment »