of Youth
  Copyright   Internet   Media
  Sex and   Censorship     Violence in   the Media

  About Us
  Contact Us
  Court and Agency Briefs
  Fact Sheets
  Policy Reports

Search FEPP


New Lawsuit Spotlights Thousands of Copyright "Orphans" That Should Be in the Public Domain

(April 8, 2004) - "It ain't over till it's over," as Yogi Berra famously said. They may have lost their legal challenge to the "Sonny Bono Copyright Term Extension Act" last year, but Internet archivists and cyberlawyers have now filed a new case arguing that changes in the copyright system over the last 30 years have had such dramatically represssive effects as to violate the First Amendment and the Constitution's Copyright Clause.

The plaintiffs in Kahle v. Ashcroft are the Internet Archive and Prelinger Associates, both Web libraries that make thousands of works freely available online, including audio, books, films, and software. In general, these works must be in the public domain, unburdened by copyright controls, before they can be made available: finding owners is often impossible, and paying for permission to reprint is not realistic for archives that house many thousands of documents.

The problem is that laws passed since 1976 have kept many works that have no commercial value under continuing copyright control rather than allowing them to pass into the public domain. These laws eliminated registration and renewal requirements for copyright at the same time that they dramatically extended the length of time during which copyright owners can exercise monopoly control over their products.

The original copyright system required authors, artists, and companies claiming rights under the law to register with the Copyright Office and give notice of who they are and where they can be located. They also had to file for renewal of their copyrights after a certain period of time. The system was "conditional," because creators had to assert their desire for copyright control.

Under this conditional system, many writings and other works entered the public domain either immediately, because the creator was not interested in commercially exploiting them, or after the first copyright term expired, because the work was no longer commercially viable, so the owner had little incentive to renew. According to the Kahle v. Ashcroft suit, "for most of our history, the renewal rate for copyrighted works averaged between 8% and 15%. At its highest, in 1990, the rate was 22%."1

In 1976, Congress began dismantling this system. First, it eliminated registration and renewal requirements for works created on or after January 1, 1978. This essentially changed the system from a conditional to an unconditional one, in which every memo, photo, poem, song, or other scrap of work is automatically copyrighted, regardless of the author's intention. The 1976 law also shifted from a 28-year copyright term, with the possibility of renewal, to a far longer term: life of the author plus 50 years for individuals, and 75 years for corporate copyright holders.

Then in 1992, Congress unilaterally renewed all copyrights dating from January 1, 1964 to December 31, 1977. For the first time in American history, virtually all works (with the exception of government documents) automatically had very long copyright terms without passing through the filter of renewal.

Finally, with the Sonny Bono Act in 1998, Congress extended the copyright term across the board by another 20 years. The term is now life of the author plus 70 years, or 95 years for corporations.

The "unintended consequence" of these changes, according to the Kahle suit, has been to create many thousands of copyright "orphans" - works that are not commercially available but are also not in the public domain. They are essentially invisible. Yet many of them have historical and cultural value.

For example, the Prelinger Archive would like to digitize and make available several documentaries from the 1960s, including one on the 1964 New York World's Fair, and another called "Detroit, City on the Move." Both films have priceless historical footage. Yet their original production companies are now defunct, and their current owners cannot be located. If not for automatic renewal under the 1992 law, they would now be in the public domain.

The Internet Archive, similarly, is working to create a "One Million Book" digital repository. But "the difficulty of identifying rights-holders and clearing copyright" has largely limited the project so far to "government documents, old texts, and books from India and Chiina, where copyright laws are less burdensome."2 The Archive wants to provide access to numerous "orphaned" works that could enrich public knowledge, but is unable to do so.

In rejecting a First Amendment challenge to the Sonny Bono Act last year in the case of Eldred v. Ashcroft, the Supreme Court explained that "when ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."3 The Kahle lawsuit argues that the shift over the past 30 years from a conditional to an unconditional system did alter the "traditional contours of copyright protection," and therefore, the courts must scrutinize the current copyright regime much more carefully. And, they add, these burdens on the free flow of culture have occurred just when, for the first time history, a new technology called the Internet offers the promise of fast and low-cost access to huge stores of creativity and knowledge.

Kahle v. Ashcroft was filed by lawyers at the Stanford Law School Center for Internet & Society.

Update, November 2004: U.S. District Court Judge Maxine Chesney dismissed the Kahle case. She ruled that all of Kahle's claims based on the Copyright Clause of the Constitution are foreclosed by the Supreme Court's decision in Eldred v. Ashcroft. As for the First Amendment claim, she ruled that Congress's removal of copyright formalities did not amount to a change in the "traditional contours of copyright protection," but only a change in the "procedural steps necessary to obtain and maintain a copyright."4 The plaintiffs appealed.

January 22, 2007: The Court of Appeals for the Ninth Circuit affirmed the district court's dismissal, agreeing that the Supreme Court's decision in Eldred essentially disposed of the case. Noting that the plaintiffs were only challenging the elimination of copyright renewal requirements between 1964 and 1977, the court said that Congress had "simply placed existing copyrights in parity with those of future works," a practice that the Supreme Court approved in Eldred.5 The court thus ignored Eldred's requirement of looking more closely when Congress changes "the traditional contours" of copyright. The plaintiffs filed a petition for rehearing.

May 14, 2007: The Court of Appeals withdrew its January decision and filed an amended opinion. It added two new paragraphs, expanding on why it thought that Eldred foreclosed Kahle's claims. Eliminating renewal requirements was just another way of effectively extending copyright terms, the court said. "Congress could have achieved the identical result by extending the term of existing copyrights before their renewal was required."6

For background on the copyright system, including term extension, see "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.


1. Amended Complaint, Kahle v. Ashcroft, Civil Case No. C04-1127BZ (N.D. Cal. March 30, 2004), p. 11.

2. Id., pp. 3, 18. Prelinger Archive examples were provided by plaintiffs' attorney Christopher Sprigman, April 8, 2004.

3. Eldred v. Ashcroft, 537 U.S. 186, 221 (2003).

4. Kahle v. Ashcroft, No. C-04-1127 MMC (N.D.Cal. Nov. 19. 2004), slip opinion, p. 25.

5. Kahle v. Ashcroft, 474 F.3d 665, 668 (9th Cir. 2007), withdrawn, May 14, 2007.

6. Kahle v. Ashcroft, 2007 U.S. App. LEXIS 11264, *7 (9th Cir. May 14, 2007).


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

All material on this site is covered by a Creative Commons "Attribution - No Derivs - NonCommercial" license. (See You may copy it in its entirely as long as you credit the Free Expression Policy Project and provide a link to the Project's Web site. You may not edit or revise it, or copy portions, without permission (except, of course, for fair use). Please let us know if you reprint!