I’m reading the briefs leading up to the Ninth Circuit’s Kahle decision, (which was handed down this week) and I found this passage, from the government’s motion to dismiss at the district court level, striking:
Under the 1909 Act, a copyright holder could secure a 28-year renewal term only after filing a renewal registration with the Register of Copyrights in the last year of the first 28-year term of protection. S. Rep. No. 102-194, at 3 (1992). “In 1976, Congress concluded years of debate and study on all aspects of the Copyright Act by passing a comprehensive revision to the 1909 law.” Id. Congress identified the copyright renewal revision as “[o]ne of the worst features of the present copyright law.” H.R. Rep. No. 94-1476, at 134. “A substantial burden and expense, this unclear and highly technical requirement results in incalculable amounts of unproductive work. In a number of cases it is the cause of inadvertent and unjust loss of copyright.”
So Congress found in 1976 that requiring authors to file for the renewal of their own works was an unjustified administrative nightmare. This, the government argues, justified scrapping the registration requirement. This despite the fact that this burden and expense is spread across thousands of different authors, and despite the fact that authors know better than anyone else which works they own and which works are still commercially viable.
But on the other hand, the author’s guild asks us to believe that it’s not burdensome to ask Google, a single company with deep but not bottomless pockets, to track down and negotiate an agreement with each and every one of those thousands of copyright holders–many of whom will not be listed in any sort of registry.
And, of course, the Author’s Guild demands that each and every company wanting to make use of orphaned works go through the same cumbersome procedure. So rather than each author filing some paperwork with the copyright office regarding his own work, you can have potentially dozens of different companies engaged in redundant efforts to track down the holders of copyrights on hundreds of thousands of different works.
These can’t both be right. If it’s unduly burdensome to ask each author to register and renew his own copyrights, it’s certainly burdensome to require every company wanting to use orphan works to track down and negotiate each and every holder of a copyright on an orphaned work.
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