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Lessig Legal Team Needs Your Copyright Stories
Joe Gratz writes "Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of 'orphan works' -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright. To win the lawsuit, we need more examples of people being burdened by these copyright-related barriers to the use of orphan works. Visit the Kahle Submission Site and tell us your story."
The summary is a bit misleading. It seems to imply that (if the lawsuit succeeds) if a work goes out of print, it will become public domain. This is not the case. The only thing that this lawsuit is aiming to do is to declare the three major copyright acts passed since 1976 unconsitutional, and basically revert back to the copyright law that existed in the US from 1790 to 1976. Basically, you would need to register works with the copyright office, renew them every so often, and keep records of all works that you have copyrighted. The copyright term would also be shortened significantly.
For big companies, keeping up with copyrights would be no big deal (although many would have a fuss about the shortening of the term, like say, Disney). That's why this talk about implications in video games is so silly. First of all, the oldest playable videogames are only about 20 years old, which is well under the copyright term, even with the old laws. Second, most videogame companies are still around, or have been bought out by other companies, in which case the copyrights would be inhereted. The fact that these games can't be bought commercially anymore doesn't mean anything, the companies would still own the copyrights, and the games would not be public domain.
The other thing to note is that any changes to copyright law are NOT going to be applied retroactively. The courts aren't going to say "Well, you didn't have to file for a copyright or keep copyright records after 1976 in order to legally have a copyright, but you should have been able to see into the future and see that these laws are unconstitutional, and done it anyways." It's impossible to say how many of the works people are talking about would still be under copyright if the recent laws had never been passed. It's theoretically possible that every work someone submits a story about would be under copyright if the new copyright laws had never been passed, and that they didn't file for a copyright simply because the new laws made it so that they didn't need to. That's why the courts aren't just going to say "Every work published from 1976 to now is public domain!"