Plaintiffs file brief in opposition to government's motion to dismiss

The Internet Archive and the Prelinger Archive have filed their opposition to the government's motion to dismiss in Kahle v. Ashcroft, a case challenging the constitutionality of Congress's removal from the copyright laws of our traditional system of formalities (i.e., registration, notice, renewal). CIS's Larry Lessig, Jennifer Granick and Chris Sprigman represent plaintiffs. Here's the opening paragraphs of our brief:

This case is about the speech-related harms caused when Congress radically changed the nature of American copyright law. For the first 186 years of our Republic, copyright laws established an "opt-in" system, one in which copyrights were secured only to those who took steps to claim them. In 1976 and 1989, Congress inverted this regime, transforming copyright law into an "opt-out" system, one in which rights are granted automatically and indiscriminately unless disclaimed.

Under the principle articulated in Eldred v. Ashcroft, 537 U.S. 186, 221, 123 S. Ct. 769, 790 (2003), this radical change in a "traditional contour of copyright" requires First Amendment scrutiny. Plaintiffs in Eldred had asked the Court to apply ordinary First Amendment review to every change in copyright law. The Court refused that request. The government in Eldred had asked the Court to affirm the judgment of the Court of Appeals below, finding copyright "categorically immune from challenges under the First Amendment." Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001). The Court refused that request as well. Instead, the Court anchored First Amendment review to the "traditional contours" of copyright protection. Laws that respected those "traditional contours," the Court held, would suffer "no further First Amendment scrutiny." But by implication, and as the government concedes, changes to those "traditional contours" would require "further First Amendment scrutiny."

The changes to the U.S. copyright system at issue in this case profoundly affect copyright's "traditional contours." Indeed, as plaintiffs would show at trial, very few changes in the contours of copyright law could have as significant an effect on First Amendment values. If any alternation to copyright laws can be characterized as a shift in the "traditional contours of copyright," these can.

In a series of statutes over a relatively short period of time, Congress shifted copyright from an opt-in to an opt-out regime, by removing from our law a core set of copyright formalities. These formalities, including (1) registration, (2) notice, and (3) renewal (hereafter, "opt-in formalities"), were required of copyright owners for them to secure initial, and continued, copyright protection.

The removal of formalities utterly changed the nature and reach of American copyright law. For 186 years of the American Republic, the purpose and effect of these opt-in formalities was to narrow the reach of copyright law to those works that had a continuing copyright-related interest. Given the limits that these opt-in formalities placed on the reach of the law, copyright burdened relatively few creative works, and hence burdened very few beyond commercial creators. The law thus left essentially unburdened archivists, preservationists, libraries, and non-commercial creators.

But by stripping out copyright's opt-in formalities, Congress has reversed this traditional pattern. Whereas copyright regulation before was the exception, now it is the rule. Whereas the burden of copyright before was effectively limited to works that had some continuing commercial viability, the burden of copyright now is spread broadly and indiscriminately to all creative works regardless of any continued commercial interest in the copyright. Whereas traditionally, the contours of American copyright law guaranteed that this regulation of speech was reasonably and effectively tailored to a viable commercial interest, today this regulation of speech burdens effectively all creative work, regardless of any continuing commercial interest in "Authors" to control its dissemination or use. Works today that have no continuing commercial use, but continue under the regulations of copyright, are effectively orphaned by the current regime.

These changes would have been significant at any time in our history. But they are especially burdensome now. Just at the time that digital technologies could enable an explosion in creative reuse of our culture, the burdens of an opt-out system of copyright make most reuse of orphaned work essentially impossible. Libraries and archives could use these digital technologies to make available an extraordinary range of our creative past. Yet the law now imposes burdens that make this reuse essentially impossible.

At trial, plaintiffs will introduce historical data showing the real-world effect of these changes in legal doctrine. Plaintiffs will show that under the traditional opt-in copyright system, a large share of published materials—perhaps as much as half—was never subject to copyright because rights-holders chose not to claim copyright. And even for those works that were copyrighted, more than 85% fell out of copyright after their initial term. These data will thus demonstrate that the most significant determinant of copyright's reach, and hence, the most significant determinant of Free Speech values, were these opt-in formalities. There is therefore likely no other change in copyright law that would have as dramatic an effect on free speech interests.

The government will file its reply on October 8, and a hearing in front of Judge Maxine Chesney (U.S. District Court, Northern District of Calif.) is scheduled for October 29. You can learn more about Kahle v. Ashcroft here. For those interested in the broader issues raised by the demise of mandatory copyright formalities, you may wish to take a look at an article by Chris Sprigman, Reform(aliz)ing Copyright, that will be published later this year in the Stanford Law Review.