If libraries are to get relief regarding the orphan works on their shelves, it looks like it won’t come from the courts. This week the U.S. Supreme Court 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’ 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, 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. [source: LJ’s Academic Newswire, Jan. 10, 2008]