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Kahle v Ashcroft Appeal Filed
An anonymous reader writes "Brewster Kahle of the Internet Archive has announced that the appeal of Kahle vs. Ashcroft has been filed.
Here is the appeal.
Kahle vs. Ashcroft concerns the constitutionality of changing from an opt-in copyright system (which existed for almost 200 years in the US) to the current opt-out system, where every doodle on a piece of paper is copyrighted for 95 years. Yes, they used the word doodle in their appeal.
Previous stories here, here, and here."
Well, changing the system isn't the issue here (although it's undoubtedly the goal). The issue here is whether the change from opt-in to opt-out was constitutional.
Looking at the constitution, you'd hardly think it's an issue:
But there's of course more to the constitution than just the text itself. It's how the Supreme Court interprets that text which is important.
In Eldred vs. Ashcroft, which is very much the predecessor to this case (Larry Lessig being involved with both), the Supreme Court basically said that the Sonny Bono copyright extension act was OK, since it didn't alter "the traditional contours of copyright protection".
So, what they're arguing here is basically a follow-up on that: "Well, what about the opt-in system? Didn't that change the contours of traditional copyright?"
I'd say it's a long shot. But I'm thankful for them trying.
The problem usually comes from vague definitions -- what exactly constitutes a significant portion of a work, for example? This ambiguity has real repurcussions. For example, scholarly articles and research in popular music are often unable to quote the lyrics of the songs under examination, even though one would think that would fall under comment and criticism.
It could be lowered back down again to life of the author + 50 years, but would be inpractical to lower it further.
The reason for this is the Berne Convention, which states that all signed parties had to provide at least a minimum of lifetime + 50. Any nation can provide more but not less.
The U.S. would not only have to pass legislation to change it. But they would have to back out of the Berne convention. Backing out of the Berne convention would (I think) have the side effect of getting the plantifs what they want, and returning the U.S. to an opt-in copyright system.
IANAL, so I very well may be wrong about that, but even if I am, it would at least remove one major hurdle to getting the U.S. back to an opt-in system.
Touch everywhere, even when inappropriate.
Opt-out has its good sides - it avoids the problem of mistakenly releasing something or having to clutter everything with copyright notices. Opt-in in itself isn't the problem. The problem is the form it has taken, where protection has gotten longer and longer.
I'd have no problem with opt-out if it was structured differently. Say, copyright on a work that doesn't either have a copyright notice, OR have been registered expires after a short amount of time after publication - say 5 years - unless copyright is registered in the meantime. It would mean that even if you couldn't prove the publication date, if you receive a work and it is not registered, you KNOW it will be out of copyright in 5 years unless there is registration at the end of that period. That's not much of a burden.
If you then further requires all work to be registered to get longer protection than, say, 20 years from publication, and be renewed every 20 years after that up to a maximum, then works that have commercial value can remain protected, while work where the owner loses interest or "disappears" will still enter the public domain relatively quickly.
It would give you automatic protection, the ability to easily prevent "mistakes" where you released something without a notice, and the ability to get protection up to 20 years without a registration by placing a notice on your work, or significantly longer if you bother with the paperwork.
There are many ways of making both opt-in and opt-out work. The problem is that the people with significant investments in copyrighted works aren't interested, and they spend fortunes on lobbying.