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Kahle v. Gonzales

In this case, two archives challenged statutes that extended copyright terms unconditionally—the Copyright Renewal Act and the Copyright Term Extension Act (CTEA)—as unconstitutional under Copyright Clause and the First Amendment.

In Kahle v. Ashcroft, we brought a constitutional challenge to two statutes that extended copyright terms unconditionally — the Copyright Renewal Act and the Copyright Term Extension Act (CTEA).  These laws created a large class of “orphan works.”  Orphan works are books, films, music, and other creative works which are out of print and no longer commercially available, but which are still regulated by copyright.  Because the copyright system contains no mechanisms to create and maintain useful records of copyright ownership, people who would like to distribute or use these orphaned works — digital libraries, or creators who would like to include the work in their own creative expression — often are unable to clear rights.  The copyright system thus denies public access to these orphan works, without creating any countervailing benefit either to authors or the public at large.  The case was ultimately unsuccessful as the Ninth Circuit rejected our challenge and the Supreme Court denied certiorari.