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?
Article comments
1 - Mark Saleski
yep, i've seen weird cases of this in the digital (sort of) music world.
there was a website devoted to unearthing old exotica records. ones that had gone out of print years ago.
the site took old LP's and posted mp3's of the songs along with lovingly scanned cover art.
the copyright holders found out about it and had them shut down.
the holders had no interest in reissues of the material (they were asked!).
kinda sad.
2 - Eric Olsen
Very good analogy: should copyright owners have the right to prohibit access to unavailable works? If so, why? No one is gaining anything if the public has no access to works.
3 - bhw
I think that if you actually register the copyright to something, what you do with it [or not] is your business. I don't think we have a constitutional right to see/hear/etc. someone else's expression of ideas.
But I do sort of agree that the passive nature of copyright is kind of silly. You don't have to do ANYthing to claim your rights. It seems that you should have to protect your work actively.
4 - Mark Saleski
surely what they do with their material is their own business.
in the example above, i thought it was pretty short-sighted (and what else is new for a record label).
nobody was making any money off of these mp3s...and just think, i might have heard something interesting...which might have lead me to purchase some other music.
nah, it'd never happen.
5 - Eric Olsen
I don't think it IS only the creator's business what happens to a work of culture once it has been released into the world. We are talking about materials that were once available but now aren't, yet th ecopyright keeps them tied up so that no one else can do anyting with them either. Why should a creator or copyright holder have the ability to prohibit someone else from doing something creative with a work that they have not kept available to the public?
6 - bhw
Because it's mine, Mine, MINE! Ahahahahahahahahahaha!