This is an interesting approach: is the unavailability of copyrighted works denial of free speech?

Kahle v. Ashcroft Case Page

Summary

In this case, two archives ask 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. The complaint asks the court for a declaratory judgement ruling, stating that copyright restrictions on orphaned works — works whose copyright has not expired but which are no longer available — violates the constitution.

Kahle v. Ashcroft FAQ

1. What's this case about?

It is about freeing our culture from unnecessary and harmful regulation. It is about 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 culture in the digital environment.

Plaintiffs in this case - the Internet Archive and its Chairman, Brewster Kahle, and the Prelinger Film Archive (formally, Prelinger Associates, Inc.) and its President, Richard Prelinger - are filing suit seeking a declaratory judgment that the current system of unconditional copyright is unconstitutional.

2. What changes?

From the first U.S. copyright statute in 1790 until the Copyright Act of 1976, the U.S. had a conditional copyright system that limited copyright protection to those who took affirmative steps to claim it - by, for example, registering their copyright, marking copies of their work with copyright notice, and renewing their copyright after a relatively short initial period of protection. (The registration, notice and renewal requirements are often referred to as "copyright formalities").

Our tradition of conditional copyright stands in stark contrast to what we have today - an unconditional system that grants copyright protection whether or not an author desires it. Our current unconditional system grants copyright protection whether or not the work is registered, marked, or renewed. Formalities, where they have been retained at all, are voluntary and do not effect the existence or continuation of copyright. Protection is indiscriminate, and automatic.

3. Isn't this just Eldred v. Ashcroft all over again?

No. Or only to the pundits who don't read before they write. Eldred v. Ashcroft involved a challenge to the constitutionality of the Copyright Term Extension Act (CTEA), which extended the term of both existing and future copyrights by 20 years. In 2003, the Supreme Court rejected these challenges. Eldred focused narrowly on the constitutionality of the CTEA's extension of the term of subsisting copyrights; the Court held that these extensions did not violate the First Amendment or the Progress Clause. Eldred did not deal at all with the constitutional implications of the shift from conditional to unconditional copyright.

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