District Court Dismisses Internet Archive’s Challenge to Copyright Regime

District Judge Maxine M. Chesney of the Northern District of California has granted the government’s motion to dismiss 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. Plaintiffs, the Internet Archive and its chairman Brewster Kahle, and the Prelinger Film Archive and its president, Richard Prelinger, sought declaratory judgment that the Copyright Renewal Act of 1992 (“Copyright Renewal Act”), the Sonny Bono Copyright Term Extension Act (“CTEA”), the Copyright Act of 1976 (“1976 Act”), and the Berne Convention Implementation Act (“BCIA”) are unconstitutional as applied to works created between January 1, 1964 and December 31, 1977.

Both archives possess works that have become “orphaned” due to changes in the U.S. copyright law. 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. Until the enactment of the 1976 Act, copyright protection was granted only to those authors who took affirmative steps to indicate their desire for such protection. However, beginning in 1976, the enactment of the four statutes-in-suit unconditionally extended the copyright term for all existing copyrights. Because the copyright system contains no mechanisms to create and maintain useful records of copyright ownership, people who would like to distribute or use 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 plaintiffs brought four counts, all of which were denied.

In Count One, plaintiffs allege that the Copyright Renewal Act and the CTEA violate the First Amendment by altering the “traditional contours” of copyright law and thereby imposed an unconstitutional burden on speech with respect to work created after January 1, 1964 and before January 1, 1978. Plaintiffs argue that Congress changed the traditional contours of copyright protection by eliminating the registration, renewal, deposit, and notice requirements as a condition of obtaining and maintaining a copyright. Judge Chesney disagreed, dismissing these procedural changes as “mere formalities.” 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 Count Two, Plaintiffs allege that as to works first published on or after January 1, 1964 and before January 1, 1978, the Copyright Renewal Act and the CTEA violated the “limited times” requirement of the Copyright Clause by establishing copyright terms that are so long as to be effectively perpetual. Judge Chesney dismissed Claim Two on the basis that the Supreme Court had ruled in Eldred v. Ashcroft that the CTEA “did not create perpetual copyrights.” Eldred v. Ashcroft, 537 U.S. 186, 209 (2003).

In Count Three, plaintiffs contend that Congress’ elimination of the registration, deposit, notice, and renewal requirements through the enactment of the 1976 Act, the BCIA, and the Copyright Renewal Act violates the Copyright Clause by failing to “promote the Progress of Science.” Plaintiffs argue that the changes in copyright law unconstitutionally favor the interests of authors over those of the general public, and thereby fail to promote the progress of science. The district court found that Eldred has foreclosed this argument by holding that the Progress of Science is promoted by rewarding authors for their creative labor, and that providing authors with such an incentive to create is “the best way to advance public welfare.” Eldred, 537 U.S. at 213. The district court further observed that Congress’ justifications for the changes to copyright law are based on the desire to increase the financial reward to authors for their creative work and to bring the US copyright law into alignment with international law such as the Berne Convention. Accordingly, the district court dismissed Count Three.

In Count Four, plaintiffs seek reconsideration of the Supreme Court’s decision in Eldred. The district court found that it has no authority to overturn Eldred, and dismissed plaintiffs’ final allegation.

The case is now on appeal to the Ninth Circuit.

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