22 January 2007

Taking the Bad With the Good

The good: The Ninth Circuit finally got around to ruling in Kahle v. Gonzales, another attack on the length of copyright as constitutionally excessive.

The bad: The court mischaracterized the copyright system in the very first paragraph of its decision.

Plaintiffs appeal from the district court's dismissal of their complaint. They allege that the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright and therefore requires First Amendment review under Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). They also allege that the current copyright term violates the Copyright Clause's "limited Times" prescription.

Arguments similar to Plaintiffs' were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. The Supreme Court has already effectively addressed and denied Plaintiffs' arguments. We AFFIRM.

Kahle v. Gonzales, No. 04–14734 (22 Jan 2007), slip op. at 892 (emphasis added).

The bolded language is disappointingly inept, and should have been thought through much more carefully than it was. On the one hand, in the broadest sense, the 1976 Act made copyright protection (if not necessarily the right to go to court to enforce that protection) automatic upon creation, which can be characterized as a change from "opt-in" to "opt-out." Or can it? Actually, it can't; there is no mechanism to disclaim a copyright in the Copyright Act. That is, once a work is created, it is in copyright. Period. The Creative Commons License, GNU License, and so on are merely covenants not to sue, so long as the reuser fulfills the other terms of the various licenses. They are emphatically not means of placing a work in the public domain. Under the 1976 Act as amended, the only two ways that a work can enter the public domain are expiration of term and failure of fixation.1 However, the system as a whole remains "opt-in" because one must take the affirmative step of registering the copyright — opting in to registration — to get into court to enforce the copyright.

Thus, it's incorrect to characterize the system as a whole as "opt-out." It's also dangerous because the "opt-in"/"opt-out" terminology has taken on opposite meaning in the debate over orphan works — one of the main concerns of the Kahle plaintiffs. Under the rhetoric commonly used in that debate, proponents of free/unlimited reuse of orphans contend that copyright holders must opt in to maintaining their copyrights.2 The better view, though, is that reusers must ensure that the copyright holder has opted out of continued copyright protection.

More suboptimal — indeed, confusing and misleading — writing in a legal document. Who would've thought that could happen?

  1. Until 1989 one could also place a work in the public domain by failure of marking. One could also place a work in the public domain by failing to timely renew it... but, since that renewal would have been due 28 years after initial registration for pre-1976 Act works, that cannot happen to any more works. There are also a few technical exceptions for unpublished works of long-deceased authors, but they're immaterial and relate primarily to the term, not the existence. of the copyright.
  2. See discussion in C.E. Petit, Cost Allocation and Copyright Orphans.