Some sad news to report: the 9th Circuit has rejected constitutional challenges to the copyright laws in *Kahle v. Gonzales*. The opinion is here. Sad, yes, but also positively maddening, for reasons I will explain shortly.
First, a bit of background: Plaintiffs in this case -- the Internet Archive and its Chairman, Brewster Kahle, and the Prelinger Film Archive and its President, Richard Prelinger -- filed suit seeking a declaratory judgment that Congress violated the Constitution when it removed our traditional system of formalities from the copyright law. A bit of background:
From the first U.S. copyright statute in 1790 until the Copyright Act of 1976, the U.S. had an "opt-in" 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.
Our tradition of opt-in copyright stands in stark contrast to what we have today -- an "opt-out" system that grants copyright protection whether or not an author desires it. Our current law 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.
Under our traditional system of opt-in copyright, the overwhelming majority (as much as 90%) of published works were neither registered nor noticed, and thus passed immediately into the public domain, where they were freely usable by others without the need to ask permission. Of the minority of works that were registered and noticed, and therefore protected by copyright, over 85% were not renewed after a relatively short (28 years) initial period of protection. These works also passed into the public domain. Our traditional copyright rules thus kept a vast amount of creative work wholly free of the burdens of copyright regulation -- a freedom, it should be noted, that was granted by an author’s voluntary decision not to register his work. Even for the subset of works for which authors secured copyright, the conditional regime’s registration requirement served to keep records of works for which copyright was claimed, and moved most protected work into the public domain after a relatively short initial term -- again, by the voluntary decision of the author. Both the existence and duration of copyright regulation was effectively narrowed to just those works that the author or his assigns had a desire to protect.
To see how big a problem this is, just take a look at the experience of one of the plaintiffs in this case. The Internet Archive, in partnership with Carnegie Mellon University, the National Science Foundation, and the governments of India and China, have been working on the “Million Book Project,” which, when complete, will offer free access to a fully-readable online library of one million digitized books. This is an innovative project that will use the low-cost distribution mechanism the Internet provides to increase public access to important works.
The Million Book Project isn’t focused on commercially successful books -- those are available at bookstores. The project will include a number of books in the public domain -- those that are free of copyright protection and thus usable without the need to obtain permission. But many books fall into a nether region. These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection. The Internet Archive wants to include many of these books, which we refer to as “orphan works,” in the Million Book Project, but current law makes that very difficult. If the Internet Archive wants to include an orphan work in the Million Book Project, it must obtain permission from the work’s owner. But figuring out who the owner is, and how to contact him, is difficult and expensive (especially in the absence of a reliable registry). Thus far, the difficulty of identifying rights-holders and clearing copyright under current copyright laws has largely limited the Million Book Project to government documents, old texts, and books from India and China, where copyright laws are less burdensome.
So, what were the legal theories in the Kahle case? Well, the principal theory came directly from what the Supreme Court itself said in its recent opinion in Eldred v. Ashcroft. Eldred 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 opt-in to opt-out copyright. Nevertheless, the Court in Eldred did say something potentially very important to that question. The Court held in Eldred that changes to the copyright laws that do not alter the traditional contours of copyright protection are unlikely to burden speech in a way that might offend the First Amendment. By implication, when Congress does alter the traditional contours of copyright protection -- as it has by shifting copyright from an opt-in to an opt-out system -- the changes to the law should be subject to heightened scrutiny under the First Amendment to determine whether they impermissibly burden speech. For reasons we explained in detail in the Kahle complaint, the shift from opt-in to opt-out copyright creates significant burdens on speech that cannot withstand First Amendment scrutiny.
So -- and this is important -- the plaintiffs' principal claim in Kahle was based directly on a First Amendment theory that the Supreme Court itself articulated in Eldred. The Supreme Court spoke, and the Kahle plaintiffs took what they said seriously. Speaking only for myself, I must say that after reading and re-reading the 9th Circuit panel's opinion, I cannot conclude that the judges listened to what the Supreme Court said in Eldred. I leave you to decide for yourselves, but particularly galling is Judge Farris' utter failure to confront the central question in the case -- i.e., whether in shifting copyright from an opt-in to an opt-out system, Congress shifted the traditional contours of copyright. The Supreme Court tells us that when Congress shifts copyright's traditional contours in a way that might burden speech, that shift is subject to ordinary First Amendment review. Judge Farris proceeds as if the Supreme Court never said this. He doesn't tell us whether the shift from opt-in to opt-out is a shift in copyright's traditional contours. He doesn't tell us how we would assess whether such a shift has occurred. He doesn't give us a reason why formalities are important, or unimportant. One may read this opinion carefully and in good faith and yet learn nothing.
I place my (faint) hope, at this point, on the full 9th Circuit -- to which we will appeal for a rehearing en banc. I will keep you posted when we know more.