Förderverein Informationstechnik und Gesellschaft

Save the Orphans


Save the Orphans

So the Stanford Center for Internet and Society has filed an action on behalf of the Internet Archive and the Prelinger Archive challenging unconditional copyright restrictions that “orphan” works. Relying upon the silver lining in that dark cloud that was Eldred v. Ashcroft (“But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary”), this case challenges a fundamental change in the contour of copyright protection, and asks the district court to therefore provide “further First Amendment scrutiny.”

The fundamental change in the “traditional contours of copyright protection” is Congress’s abandonment (formally in 1976, but effectively only in 1992) of any formalities for copyrighted work, and in particular, the requirement that copyrights be renewed. In 1992, Congress passed the BCIA, extending the term of all works in their initial term in 1964 through 1978. The Sonny Bono Act then extended those terms in 1998. The CTEA was thus the first statute in the history of the US generally to extend the term of copyrights that did not, or would not, pass through the filter of renewal.

The case is described on the CIS site. The complaint is linked here.