The lawsuit asserts that "copyright restrictions on orphaned works—works whose copyright has not expired but which are no longer available—violate[] the [C]onstitution." This sounds a bit bizarre to start with; but an extended quotation from a press release demonstrates the real problem:
"Orphaned films are trapped in legal limbo, where they may disintegrate before anyone gets a chance to see them again," said Rick Prelinger, president of Prelinger Archives. "Automatic copyright extension that nobody asked for prevents archives and collectors from showing them or putting them online for everyone to use. Film is fragile and often doesn't last as long as a 95-year copyright term. Let's find a way to get these abandoned works into the hands of educators, students, filmmakers, and the public."
"Libraries traditionally have made out-of-print books available to the public. Now, students and others look online for works and are denied access to out-of-print materials because the laws have not been updated to enable them to be posted on the Internet. If we want to continue to have libraries serve the vital function they always have, we have to find ways to allow them to post orphaned works online," said Brewster Kahle, chairman of the Internet Archive. "The Internet Archive would love to be able to scan in all orphan books so that people everywhere can access and read them. But under current law, it is too expensive, and sometimes impossible to find their authors and clear their rights-even when we know that for most of these books, the author would gladly agree to our posting them."
Taking these problems one at a time:
- The concern about the loss of older films is a legitimate one. However, the proposed remedy goes far, far beyond simple preservation. Preservation requires only the making of an archival-quality copy; it does not require distribution of the material, for fee or for free, over the Internet. Further, note that well over 99% of the works in question are works for hire, not the work of individual creators. In other words, the actual creators probably benefit only minimally, if at all, from further exploitation of the work.
- The concern about the loss of older textual works is much, much harder to fathom. There are probably a few works that remain in copyright at this time that need preservation because the only available originals were printed on high-acid paper. However, not only does this ignore the archive/distribution distinction, but it puts a non-copyright rationale for unavailability—that it would not be economical to bring the works back into print, because the cost of the distribution system makes it unbusinesslike—into play as the unstated, but real, rationale for changing the rules on copyright.
We'll leave aside the "corporate v. actual author" ownership of copyright for the moment; even though that is the real cause of the controversy (as I've noted previously, almost all of the citeable instances of "abuse" of a copyright to inhibit further creativity involve works whose copyright is not controlled by the natural person(s) who created them), the apparent problem is that Kahle et al. don't want to pay for individual copies. By no means am I defending the pricing practices of the publishing and entertainment industries; I am merely noting that the lawsuit essentially seeks to swap one extreme for the other, without ever asking if there is a systemic, non-copyright problem that needs attention either prior to or simultaneously with "reforming" copyright.
Let's look for a moment at a few alternatives to allowing free copying and distribution of "orphaned" materials. Certainly, there is a significant effort ongoing now—not sufficient, but significant—to preserve "classic" films with deteriorating prints and negatives. The only apparent justification for the archives' position is that they can only afford to engage in a similar effort for works not yet recognized as "classic" if they are allowed to distribute the results of their efforts, without regard to the existing rights of copyright holders. One can only wonder whether the copyright holders might actually grant permission for a preservation effort, because on the face of the lawsuit there appears to have been little attempt to obtain such permission. There is certainly something to be said for wanting to retain for one's own use a copy of that preserved record that one created; but that's not at all the same thing as making it freely available to others.
At the other extreme, I have yet to see a realistic consideration of the economic realities and motivations of the publishing industry in any of these types of criticisms. This cuts both ways, of course; one can argue that private, profit-motivated publishing inhibits the development of the public domain. (That this argument is foreclosed by the language of the IP Clause doesn't seem to bother these critics: The Constitution justifies the limited monopoly right it empowers Congress to grant with the precatory "To promote Progress" language that implies that profit from exploiting that monopoly is sufficient motivation to create more works than might be created without such a monopoly.) What the various "archival" arguments boil down to is that the publishing industry doesn't properly select works that have such importance that they must be continuously available to the public. The nicest thing that I can say about this argument is that it ignores the most critical factor in the catalog life of a book: That the author does not have the ability to keep the work in print. The entry costs to individual authors have historically been too high, and remain too high; and free copies do have some effect—impossible to calculate, but anecdotal evidence indicates that for works that are not otherwise "bestsellers" it is a negative effect—on the author's ability to realize continued income from the work during the "monopoly period."
In other words, this really isn't about the content of the public domain at all. It's about money. And, as such, a "solution" that ignores economic causes of the particular distribution of distributions is at best disingenuous. It attempts to impose values that might be applicable to a relatively small subclass of works on the entire class of works at issue. That this mode of reasoning also seems to underly a lot of bigotry and prejudice does not make me any more comfortable with either the reasoning or the result. I am not saying that those who advocate broader use of copyright materials are Klansmen—only that the method of reasoning used is uncomfortably similar, and for that reason alone bears very careful scrutiny on its real, and not its asserted, bases.