It seems that the indefatigable Lawrence Lessig and the rest of the gang are behind yet another constitutional challenge against copyright law as it exists today with this new case. The case was filed on March 30, 2004 in the U.S. District Court for the Northern District of California by the Internet Archive chairman Brewster Kahle and Richard Prelinger, president of the Prelinger Film Archive, against Attorney General John Ashcroft in his official capacity (as all constitutional challenges are made). The case, this time, argues that two recent laws that have provided for unconditional copyright, the Copyright Renewal Act and the infamous Sonny Bono Copyright Extension Act both violate the Free Speech clause of the First Amendment. The plaintiffs seek a declaratory judgment that copyright restrictions imposed on orphaned works, that is works upon which copyright should still apply but which are no longer available, are unconstitutional. Unlike the related, and ill-fated case Eldred v. Ashcroft, which focused narrowly on the retroactive copyright extensions provided by the string of laws extending copyright and in particular the Sonny Bono Copyright Term Extension Act, this case deals more with the constitutional implications of the shift from conditional to unconditional copyright.

First off, what is meant by "unconditional copyright"? US copyright law from the first copyright legislation in 1790 up until the Copyright Act of 1976 required what is known in contrast as conditional copyright. That meant that copyright protection was granted only to those who took affirmative steps to claim that copyright, such as by registering it, marking their work with a copyright notice, and then periodically renewing the registered copyright at intervals. These registering, noticing, and renewal requirements are collectively known as "copyright formalities". However, all of that changed with the passage of the Copyright Act of 1976, which began to provide for unconditional copyright, granting copyright protection whether or not a work has been registered, noticed, or renewed. Formalities are now completely voluntary, and exist only to facilitate litigation in case of a copyright infringement dispute. The type of protection granted by the present unconditional copyright regime is indiscriminate and automatic, and the plaintiffs argue that not only is this socially harmful, but also unconstitutional to boot.

The present unconditional system of copyrights causes harm in many ways. Copyright applies automatically to a work, regardless of the author's intentions, for the full term of copyright, and it is perversely becoming more and more difficult to release something into the public domain (it is now public domain that seems to require the formalities that used to be required for copyright). The unconditional copyright system also destroys the records of ownership that were created by the system of registration that obtained under conditional copyright. This makes it painfully difficult to find proper licensors for the older, and/or less popular works. If one's best efforts cannot find a licensor for a work one wishes to reproduce, that doesn't mean that an angry copyright holder will not appear within the next hundred years to ask for a reckoning, and that is a risk that few are willing to take. This makes reuse of copyrighted works practically impossible for many would-be users, thus creating what are arguably unreasonable restrictions on freedom of speech.

The experience of Brewster Kahle himself with the Internet Archive's Million Book Project, which is an ambitious project to develop a digital library with a million books, concretely illustrates the kind of problems that the unconditional copyright regime in force today creates. The Project does not focus on commercially successful books, which are readily obtainable from traditional channels, but will include books that have entered the public domain and do not require any licensing for them to reproduce and distribute. There is, however, an important and very large gray area in between: works that are not commercially viable, thus they aren't readily available to the public, but still fall under the grip of copyright restrictions thanks to copyright's unconditional nature. The Million Book Project would like to include such works as well, which they collectively refer to as orphaned works, but copyright law as it exists today makes this difficult. The old system of conditional copyright, in contrast, would have filtered these works into the public domain long ago, as they would not have been registered or renewed, or if they were, it would be a simple matter to ask for permission.

This shift from conditional to unconditional copyrights happened relatively recently, beginning with the Copyright Act of 1976, which eliminated the registration and notice requirements, and reduced the renewal requirements significantly. The final stroke came with the Berne Convention Implementation Act of 1992, which brought American copyright law in line with the Berne Convention rules, totally eliminating renewal. Eldred v. Ashcroft brought this important fact to light, as it had been argued there that changes to copyright law that do not alter the traditional contours of copyright protection are unlikely to result in violations of the First Amendment. However when Congress does change the traditional contours of copyright protection, as they did with the passage of these laws that shifted copyright from conditional to unconditional, these changes should be carefully examined to ensure that they do not impose significant burdens on freedom of speech. The plaintiffs contend that this shift from conditional to unconditional copyright creates burdens on freedom of speech that cannot stand up to the First Amendment.

This case represents a parallel line of attack on the problem of copyright reform. The Public Domain Enhancement Act (see Eric Eldred Act for more details on this proposed law) attempts to achieve the same aims, but the bill seems to be receiving only scant support in Congress, so they felt the need to pursue this case as well.

In the event of victory, this may create some problems with implementing the Berne Convention, but the plaintiffs feel that there are many ways of revising copyright law to be conditional while at the same time not violating the Convention. One way might be to re-impose formalities for U.S. authors only, as the Berne Convention does not prohibit a signatory nation from imposing formalities on works created by its own citizens. The Public Domain Enhancement Act, as previously noted, would also have the effect of bringing conditional copyright back after a fashion, and it can be phrased in such a way as to be compliant with the Convention.

The case has only been very recently filed, and very little has happened so far. Lessig is as of this writing (June 16, 2004) soliciting stories from other people who have run into the kind of barriers that the regime of unconditional copyright has created. If you have any stories about the difficulties endured while attempting to use orphaned works, go here:

and share your stories with the legal team.

I'll update this page periodically as developments occur in the case.

Update, 2004-11-24: District Judge Maxine Chesney has dismissed the case, ruling that Congress has substantial flexibility in expanding copyright restrictions without interference from the courts. The team is working on filing an appeal, as Kahle has stated that the court never did address their primary arguments in the case.

Update, 2005-01-25: As expected, an appeal has just been filed for Kahle v. Ashcroft last January 21 in the Ninth Circuit Court of Appeals.


Kahle v. Ashcroft Page at