Brewster Kahle, head of the Internet Archive, has made it his mission to update copyright law for the digital era. But his efforts hit a snag yesterday: An appeals court rejected his argument in Kahle v. Gonzalez, a lawsuit that wants to let “orphan works” enter the public domain.
Orphan works are copyright law’s great conundrums — books, photographs, songs, and other copyrighted material that have exhausted their commercial life spans and have no apparent owners. And orphans, it turns out, are everywhere. Less than a decade ago Carnegie Mellon University reviewed 270 books from its library and determined that 22 percent of those volumes were, for all intents and purposes, unowned.
Orphans pose a problem for scholars because college and museum lawyers — worried that litigious copyright holders may come out of the woodwork — often urge that usage restrictions be placed on those works.
That’s where Mr. Kahle came in. He and Lawrence Lessig, Stanford University’s digital-law guru, argued that a recent change to U.S. copyright law — a shift from a model that required creators to register for copyright to a new scheme that made copyright automatic — had made it nearly impossible to distribute orphan works. Instead of automatically receiving copyrighted status, orphans should enter the public domain unless someone comes to claim them, Mr. Kahle and Mr. Lessig said.
The U.S. Court of Appeals for the Ninth Circuit didn’t buy that argument. If they want to continue with the lawsuit, Mr. Kahle and Mr. Lessig may be able to seek a review by a larger panel of judges, according to Wired‘s 27B Stroke 6 blog. —Brock Read
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