Kahle and Orphan Works

I’ve got a new article up at Ars about the Ninth Circuit’s Kahle decision:

Kahle plans to appeal the ruling to a larger panel of the Ninth Circuit, but their prospects don’t look good. With three Ninth Circuit judges already ruling against him, Kahle will face an uphill battle convincing the full Ninth Circuit that his arguments are different from those the Supreme Court raised in Eldred.

That’s a shame, because Kahle’s lawsuit highlights a serious and growing problem. New technologies are greatly enhancing the opportunity to make better use of older creative works. Books that have traditionally sat unread on dusty library shelves can now be made available in searchable form via the Internet. Old films that once languished unwatched in vaults could be digitized and made available for consumers to view in their living rooms. The main thing standing in the way is copyright law.

If the courts ultimately reject Kahle’s arguments, the battle to free orphan works will shift back to Congress. Some scholars have suggested that Congress should enact an orphan works defense that would shield individuals who reproduced a copyrighted work after making a diligent effort to find the copyright holder. The UK’s Gowers Review has recommended that a similar rule be adopted in the European Union. Although this would not make orphan works as widely available as placing them in the public domain, it might be enough for the likes of Kahle and Google.

Since it was a quasi-news article, I didn’t spend much time discussing the case on the merits. Although I certainly hope they prevail, their argument didn’t strike me as terribly strong. And even if the courts are sympathetic to their argument on the legal merits, it’s hard to see what remedy the courts could fashion. They certainly can’t throw all works created between 1964 and 1977 into the public domain, nor could they realistically reinstate a registration system that’s atrophied over the last decade. About all they could conceivably due is rule that the works will fall into the public domain by some particular date unless Congress acts first to reinstate the registration system. But it seems unlikely that a Supreme Court that shied away from locking horns with Congress in Eldred would take the even more confrontational stance that’s urged in this case.

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