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.