The challenge came from San Francisco-based Internet Archive, a
non-profit organisation which has been building an internet library
since 1996. Its purpose is to offer permanent access for
researchers, historians, and scholars to historical collections
that exist in digital format. Using its Wayback Machine, anyone can
examine billions of archived pages that date back to 1999.
Joining in the action was the affiliated Prelinger Archives,
founded by Rick Prelinger in 1986, which preserves historically
significant films that are not collected elsewhere.
Both Archives were concerned that, as a result of recent
extensions in the copyright terms, they were unable to post works
that would otherwise have entered into the public domain.
The Archives therefore asked the US District Court for the
Northern District of California to issue a declaratory ruling that
legislation, including the Copyright Renewal Act of 1992 and the
Copyright Term Extension Act of 1998, breaches the First Amendment
right to free speech. In particular, they complain that the
legislation extends the term of copyright for works created between
1st January 1964 and 31st December 1997 without requiring that the
author of those works apply for renewal of copyright.
The Acts, said the Archives, breach a copyright clause of the
Constitution because they create an "effectively perpetual"
copyright term.
Finally the Archives argued that, until 1976, copyright
restrictions were on an opt-in basis, where authors had to take
steps to make their copyright known, rather than simply given an
automatic copyright and automatic renewal – as is the case now. The
change from opt-in to automatic, said the Archives, was a radical
transformation of traditional rules, and was largely illegal.
The court did not agree and dismissed the case, relying on an
earlier Supreme Court case that recognised the leeway granted to
Congress in legislating on questions of copyright.
This had been expected, Brewster Kahle, chairman of the board of
Internet Archive, told CNET News.com. The main thrust of the case,
he reasons, is unlikely to be considered until it reaches appellate
level. Accordingly, the Archives will appeal.
