(first appeared on teleread today)
Wow, did anyone notice that Lessig went to court last month? He argued in Kahle vs. Gonzales before the 9th Circuit Court of Appeals that the change “from an ‘opt-in’ to an ‘opt-out’ system of copyright alters a ‘traditional contour of copyright,’ requiring ‘further First Amendment scrutiny’ under the standard established in Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769 (2003).”
The plaintiff’s brief is here , and here are Lessig’s thoughts afterwards (sort of confusing to read, because he’s responding to lots of commenters). Here’s an mp3 audio of the oral arguments (27 minutes long). Generally, Lessig sounds better prepared than the government’s attorney, and the questioning judges pressed both sides on how this case differed from Eldred. One judge asked the government’s attorney (at the 17 minute mark):
Question (Judge Schroeder): Is there anything in the legislative history to indicate that Congress was aware that in changing the system there might be some copyrights where there’s nobody there anymore who really enjoys the copyright right?
Answer (government attorney): I’m not aware of any discussion that specifically focuses on that point.
Ponder that. The government attorney acknowledges having no knowledge of any discussion by Congress about the consequences of moving from an opt-in to an opt-out system. That concession is unbelievable. Considering legislative history is often a key piece of evidence when judges interpret laws, and the government has basically conceded that the matter didn’t even come up.
The crux of the harm is here (found in the Plaintiff’s brief) (p21):
Tracing ownership for work published in 1930 and 1964, however, is infinitely easier than tracing ownership for work published in 1978 — at least if that work is no longer commercially exploited. For before 1978, at some point in the history of the copyright, the copyright owner had to register the work (either initially or at renewal). However outdated, that registry was an initial and crucial filter, separating protected from public domain works. After 1977, however, no registration is required. Copyright extends automatically to every creative work reduced to a tangible form. Thus, to clear rights for works created after 1977, an archive would have to determine the ownership of works that have never been registered, and that have no requirement of marking or notice. Thus, under the system that exists after 1977, it is only commercially available work that can be reasonably acquired and spread — since commercial availability presumptively points to the copyright owner. The balance of creative work — and the vast majority of creative work — remains locked up by legal regulation.
Lessig uses as an example a book published in 1930 (p 20-21):
In 1930 there were 10,027 books published. In 2001, only 174 of those books were still in print. Brief of Amici Curiae Internet Archive et al., Eldred v. Ashcroft, 537 U.S. 186 (2003), at pp. 12-13 (attached at Addendum). That means 9,853 books from this single year are out of print. Yet because published after 1923, all of these books remain within the scope of copyright protection.
If a digital archive such as plaintiff Internet Archive sought to make those out-of-print books available on the Internet, it would need the permission of the copyright owners of each work. (Electronic access, even if copies were not distributed, would infringe an exclusive right of copyright.) The archive would therefore first have to determine which of the 9,853 were still under copyright. That is determined by verifying which of the 9,853 books had its copyright renewed. The archive would then have to locate the current copyright holders for those works whose copyright was renewed. This part of the process could well be impossible. There is no list of current copyright owners. Nor is there any requirement that transfers be recorded.
Predictions: All of us on teleread favor some kind of copyright reform and gleefully predicted a few years ago that the Sonny Bono Act would be overturned. Egg on our faces! So when making predictions, I have to consider my (ahem) track record. However, the harms pointed out by the plaintiffs is obvious and tangible. And unlike the Eldred case, there are not substantial commercial interests opposing the measure. (Walt Disney really does not care about this case–although professional photographers seem to). My guess is that the plaintiffs will prevail in demonstrating that the traditional contour of copyright has been changed, requiring 1st Amendment scrutiny.
However, Congress already had been considering specific legislation to address orphaned works and will probably pass something in 2007. Lamar Smith is working on legislation to limit liability for libraries and nonprofits who are found to be infringing (more). That is substantially weaker than the Public Domain Enhancement Act proposed a few years ago (that’s the one requiring copyright owners to pay a tiny renewal fee). Unfortunately, the tiny $1 registration fee is still considered excessive by some.
The question is whether the legislative track will beat the judicial track or vice versa. Kahle vs. Gonzales has been preceding very slowly (especially if it makes it to the Supreme Court). A resounding judgment on Kahle v. Gonzales (even at the appellate level) might push Congress to consider measures that go beyond limiting liability and towards creating a user-friendly system to verify copyright registration.