Closing off a possible opening for libraries and archives that want to digitize old works, the Kahle lawsuit was dismissed Nov 19th.
Quick summary: the court said that the lawsuit's premise (that eliminating renewal requirements for works published 1964-1977 violated both the "limited times" provision in the Constitution and the First Amendment) did not rise to a constitutional question. Instead, said the court, the formalities are mere procedures necessary to maintain copyright protection.
Minow take: Kahle certainly had an uphill battle in light of the Eldred case, the Supreme Court case that upheld the Sonny Bono Act in 1998. That Act added twenty more years of copyright, even for dead authors who presumably have zero incentive to create more. U.S. Copyright now lasts for the author's lifetime plus 70 years, which I would argue is pushing the Constitution Sec. 8 Cl. 8 "limited times" beyond reasonable limits. The Eldred decision, however, said it's up to Congress to define "limited times," and the Supreme Court was not in the position to judge Congressional lack of wisdom.
I'm surprised, however, that the court decided to dismiss the case without a hearing. This means the plaintiffs can't present any "real world" effects on libraries and archives unless they win an appeal.
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Kahle v Ashcroft, No. C-04-1127 MMC ORDER GRANTING MOTION TO DISMISS; VACATING HEARING (Docket No. 24), U.S. Dist Court for the Northern Dist. of Calif., Nov 19, 2004 at www.joegratz.net/files/Kahle-ChesneyDismissal.pdf
From the decision:
In Count One, plaintiffs allege that the Copyright Renewal Act and the CTEA violate the First Amendment to the United States Constitution by imposing an unconstitutional burden on speech with respect to works created after January 1, 1964 and before January 1, 1978 as a result of having altered the "traditional contours" of copyright law from a conditional copyright regime to an unconditional copyright regime. (See Compl. ¶¶ 81-92.)
In Eldred, the Supreme Court observed that the adoption "close in time" of the Copyright Clause and the First Amendment indicated that the Framers of the Constitution were of the belief that "copyright’s limited monopolies are compatible with free speech principles." See Eldred, 537 U.S. at 219. As the Supreme Court noted, "copyright’s purpose is to promote the creation and publication of free expression," see id. (emphasis in original), and "‘[b]y establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.’" Id. (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985)).
Additionally, the Supreme Court distinguished between the reproduction of another’s speech and "the freedom to make . . . one’s own speech," noting that the First Amendment "securely protects" the latter, but "bears less heavily when speakers assert the right to make other people’s speeches." See id. at 221. "To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them." Id. In conclusion, the Court declined to hold copyright law absolutely immune from challenges under the First Amendment, but held that where "Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." See id.legislation under the First Amendment. See id.EP. NO. 102-194 at 5-6 (repeatedly referring to renewal requirement as a "formality"); see also S. REP. NO. 100-352 at 12 (referring to notice and registration requirements as "formalities"); H. R. Rep. No. 83-2608, 1954 U.S.C.C.A.N. 3629, 3631 (1954) (referring to deposit, registration, and notice requirements as "formalities"; proposing amendments to U.S. copyright law to conform to Universal Copyright Convention). Such formalities do not alter the scope of copyright protection, but merely determine the procedures necessary to obtain or maintain such protection.221.8 Accordingly, defendants’ motion to dismiss Count One will be granted, and Count One will be dismissed with prejudice.
As discussed earlier, Eldred addressed the constitutionality of applying the CTEA’s extended copyright terms to existing copyrights. In Eldred, the Supreme Court found there existed "an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime." See id. at 200. In addition, the Supreme Court found that the CTEA "protects authors’ original expression from unrestricted exploitation" and that "[p]rotection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas." See id. at 221. Consequently, the Court found that Congress had not altered the "traditional contours of copyright protection," and found no need to engage in scrutiny of the
Here, plaintiffs allege that Congress, by eliminating the registration, renewal, deposit, and notice requirements as a condition of obtaining and maintaining a copyright, has altered the traditional contours of copyright protection. The Supreme Court has not identified the entire universe of protections that it considers to be within such "traditional contours." The phrase "traditional contours of copyright protection" originates in Eldred and appears in no other federal court decision prior to Eldred. The concepts of copyright law that the Supreme Court suggests fall within those contours – the idea/expression dichotomy and the fair use exception – each relate to the scope of copyright protection.
By contrast, the registration, renewal, deposit, and notice requirements do not define the scope of copyright protection but, rather, the procedural steps necessary to obtain and maintain a copyright. Congress has repeatedly stated that these requirements are mere "formalities." See, e.g., S. R
Because changes to requirements of this nature do not alter the substantive rights granted by copyright, this Court finds that the challenged amendments do not alter the "traditional contours of copyright protection." Although plaintiffs state, in their opposition, they will show at trial the "real world effect," (see Opp. at 3), of the challenged changes to copyright law, no such evidence can alter this fundamental defect in their case.
As plaintiffs do not allege any alterations to the "traditional contours of copyright protection," no further First Amendment analysis is necessary. See Eldred, 537 U.S. at
CONCLUSION: For the reasons set forth above, Ashcroft’s motion to dismiss is GRANTED, and the complaint is DISMISSED, in its entirety, with prejudice.
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