[A2k] US Supreme Court declines to hear orphan works case

[Judit Rius Sanjuan]

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http://www.libraryjournal.com/article/CA6523163.html?

Supreme Court Declines To Hear Orphan Works Case
Andrew Albanese -- Library Journal, 1/16/2008

     * Hopes were raised
     * Plaintiffs thought copyright extension warranted review
     * Suit brought by OCA founders

The U.S. Supreme Court has declined to hear the appeal of Kahle v.
Ashcroft, brought by Internet Archive and Open Content Alliance
founders Brewster Kahle and Rick Prelinger in 2003, which challenged
the constitutionality of the current copyright regime. Although not
unexpected, the Supreme Court's refusal comes after a recent ruling by
the 10th Circuit Court of Appeals raised hopes of a review and lets
stand the Ninth Circuit Court of Appeals' rejection, effectively
ending the case.

The Kahle suit was launched in the wake of the unsuccessful 2003
Eldred v. Ashcroft case, which challenged Congess's extension of
copyright terms. In that ruling, the Supreme Court held that changes
by Congress to the "traditional contours" of copyright law warranted a
First Amendment review. Kahle v. Ashcroft contended that Congress's
sweeping changes to copyright law in 1976 were enough of a change in
the "contours of copyright" to require review.

Until 1976, copyright law required creators to register their works.
Changes to the law, however, removed the necessity to register works
and extended the basic copyright term from 28 years to "life plus 70
years." The combination of those changes has thrown many works without
clear copyright owners into legal limbo, creating the so-called orphan
works problem.

The Tenth Circuit Court of Appeals, in fall 2007, bolstered hopes of a
Supreme Court review for Kahle, with its ruling in Golan v. Gonzales,
which held that a provision of the Uruguay Round Agreements Act (URAA)
that "restored" copyrights to some works already in the public domain
was enough of a change to copyright traditions as to require review.
In that ruling, Kahle's lawyers hoped the Supreme Court would see a
legal point of reference and would agree that changing copyright from
an opt-in system with a short protection period to an opt-out system
with a lengthy protection period was also significant enough to
warrant review.

Judit Rius Sanjuan
Attorney at Knowledge Ecology International
www.keionline.org / www.cptech.org
Phone: +1.202.332.2670, x18
Email: judit.rius@keionline.org