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Plaintiffs Brewster Kahle, founder of the Internet Archive, and Rick Prelinger, founder of the Prelinger Archives, have announced plans to appeal the peremptory dismissal of their complaint. Good on them. The case challenges the principal change of copyright regime in the late 20th Century: from an opt-in to an opt-out regime. The four specific laws at issue are the Copyright Renewal Act of 1992, the Sony Bono Copyright Term Extension Act, the Copyright Act of 1976. and the Berne Convention Implementation Act. The basic principle of Berne is that material is 'born copyrighted.' Unlike in the past when creators had to register and maintain a copyright, Berne says that stuff just is copyrighted, even if the creator doesn't wish it and does nothing to make it so. If you want your work to be available to others, you have to take an affirmative step to disclaim copyright and release the material. What Kahle & Prelinger want to argue is that this change presents an unreasonable burden on speech. In effect, both men are trying to build libraries that, like the physical libraries of their youth, contain thousands of volumes unavailable elsewhere. However, in the digital world that's no longer possible. The trial judge, Maxine Chesney, dismissed the suit without a hearing on the issues. My guess is that the Ninth will send it back for an actual hearing, she'll rule the same way, and it'll end up back at the Ninth late next year on another appeal. |