Kahle-Prelinger v. Gonzales gets its day

We've looked forward to this day for a long time: Attorney Lawrence Lessig argued this morning to the 9th Circuit Court of Appeals in San Francisco that the relatively new problem posed by orphan works deserves a first amendment hearing. Before copyright was switched in the 1970s from an "opt in" system to an "opt out" system, there were not legions of books and films floating in copyright limbo as they do today. Books and films become orphan works when they are subject to automatic copyright registration and renewal while lacking an owner or claimant to benefit from that copyright. This relatively new problem means that thousands of books and films must be withheld from joining the digital libraries of the world solely because of a legal misfortune that guards absent and nonexistent copyright holders from any injury that would result from their work finding a new life, a new readership, and a new meaning in the culture.

I have felt very strongly about this problem ever since I worked in education research years and years ago. Part of my job was preparing anthologies of research materials for educators, and time and again found that important material was lost to contemporary audiences because I couldn't obtain permission to reproduce it...only because no person or publisher existed any longer to ask, while the copyright protection persisted. I thought of it then as an electronic fence that continues to stand long after the garden it encircles has become overgrown because no one could enter to tend it. For Rick, the problem of orphaned works constrained his initiative to put films from the film archive online for free download, a problem that formed a basis of the case.

This problem has become only more pressing to both of us in the past two years since we opened the library. As described in the post below, we've long wished to create a digital corollary to our analog shelves. Coincidentally, Kahle-Prelinger v. Gonzales finally (after a couple of years) got its hearing date just as we're in the middle of a digitization project that has pulled this problem out of the realm of the theoretical, vis-a-vis our book collection. We're now pulling a new crop of books from our shelves every week for digitization, and running copyright checks on each of them. It's disappointing to exclude works of merit from digitization because they are copyright-protected orphans.

Our thanks to Mr. Lessig and Mr. Sprigman of the Stanford Law School Center for Internet and Society for preparing the argument. Good luck! Above, we are pictured in court this morning after the hearing with Mr. Lessig and with our co-plaintiff, Brewster Kahle. Thanks to Raj Kumar for the picture. --Megan