[Rumori] archives ask court to free "orphan" copyrights

Rick Prelinger footage at panix.com
Mon Mar 22 21:53:18 PST 2004

For Immediate Release: Monday, March 22, 2004

Center for Internet and Society
Media Release


Christopher Sprigman
Fellow, Center for Internet and Society
(650) 725-9451

Brewster Kahle
Chairman, Internet Archive

Rick Prelinger
President, Prelinger Archives

Professor Lawrence Lessig
Stanford Law School


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 

"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:


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.

Lauren Gelman            
Center for Internet and Society
Stanford Law School
(ph) 650-724-3358
CA Bar No. 228734


Rick Prelinger
Prelinger Archives    http://www.prelinger.com
P.O. Box 590622, San Francisco, Calif. 94159-0622 USA
footage at panix.com

Online film collection at Internet Archive: 

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