News

Court Dismisses New Challenge to Copyright Regime

(November 29, 2004) - San Francisco federal district judge Maxine Chesney has made short work of the latest court challenge to America's increasingly enclosed copyright system. Dismissing the case of Kahle v. Ashcroft, Judge Chesney rejected the plaintiffs' arguments that changes to copyright law over the past 28 years have so restricted the public's access to thousands of historically valuable works as to violate the First Amendment.

The suit, brought by the Internet Archive and Prelinger Associates, alleged that by creating ever-longer terms for copyright control while at the same time eliminating requirements that creators register, renew, and provide public notice of their copyrights, Congress fundamentally altered the system. As originally conceived, copyright required registration and notice, so that many creative works would enter the public domain immediately, because their creators were not interested in commercially exploiting them. Other works would enter the public domain soon after, because copyright control lasted only for a limited time (14 years under the first U.S. copyright law), and many owners would not bother to renew.

Under this "conditional" regime, according to the complaint in Kahle v. Ashcroft, "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

Starting with the 1976 copyright law revision, though, and continuing through the Sonny Bono Copyright Term Extension Act of 1998, the term of copyright control was dramatically extended. Under the Sonny Bono law, it is now life of the author plus 70 years, or 95 years for corporations. And because registration, renewal, and public notice are no longer required, thousands of copyright "orphans" are essentially invisible: they have not been registered; their owners cannot be found; yet they cannot be disseminated because they are not in the public domain.

In rejecting a First Amendment challenge to the Sonny Bono Act last year, the Supreme Court said that "when ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."2 The Kahle lawsuit argues that the shift 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.

Judge Chesney disagreed. She ruled that lifting the renewal and notice requirements did not amount to a change in the "traditional contours of copyright protection," but only in the "procedural steps necessary to obtain and maintain a copyright." In dismissing these procedural changes as "mere formalities," the judge said that the dramatic real-world effect of the switch to an unconditional system, including restrictions on access to thousands of orphaned works, was irrelevant. According to Judge Chesney, evidence of the real-world effect, which the plaintiffs said they would produce at trial, would not "alter this fundamental defect in their case."3

The plaintiffs, represented by lawyers at the Stanford Law School Center for Internet & Society, are planning to appeal the dismissal of their case to the U.S. Court of Appeals for the Ninth Circuit. The outcome of the appeal will likely turn on whether the appellate judges agree with Judge Chesney that the change to an unconditional system was merely a formality, despite its massive impact on the public's ability to access and learn from many thousands of books, pamphlets, letters, plays, and films that form America's cultural heritage.

For more background on Kahle and on copyright term extension, see New Lawsuit Spotlights Thousands of Copyright "Orphans" and "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.

Update: 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.4 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."5

NOTES

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

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

3. Kahle v. Ashcroft, No. C-04-1127 MMC (N.D.Cal. Nov. 19. 2004), slip opinion, p. 25. The judge also dismissed three claims relating to the Copyright Clause, which she said were foreclosed by the Supreme Court's Eldred decision.

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

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