• by Wendy Davis  @wendyndavis, January 9, 2008

A campaign to make it easier to create online archives of books, films and software was dealt a setback this week by the U.S. Supreme Court, which declined to hear a case about the copyright law's constitutionality.

In the case, Internet Archive founder Brewster Kahle challenged the copyright protection given to so-called "orphan" works, or material for which the owner can't be found. Currently, if Kahle or other Web companies post such material, but the owner later steps forward and sues, the companies can't defend themselves on the grounds that they couldn't locate the owner.

Kahle, represented by the Center for Internet and Society at Stanford, had hoped to change that by arguing that the law protecting orphan works--passed before widespread Internet access--violated the First Amendment.

"The freedom to cultivate and spread our culture, enabled by these technological changes, is now significantly restricted by unnecessary legal regulation," Kahle argued to the federal appellate court. The 9th Circuit ruled against him last year.

Currently, books, movies and other material are entitled to copyright protection that lasts for the author's life and an additional 70 years. After the author has died, an heir often initially owns the copyright, but heirs can--and often do--transfer that right over the course of 70 years. The problem arises when the copyright is transferred so many times that it's no longer apparent who owns it. Sometimes books and the like have been out of circulation for so long that the actual owners don't even realize they have a legal claim to a potentially valuable intellectual property right.

Legal experts say that locating the copyright owners in these situations is often a daunting and expensive task. "There are works that are locked up under copyright law where it is cost-prohibitive to find the owner and ask him for permission," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law. In such cases, Goldman says, no one benefits by the current regime, which exposes anyone who posts orphan works to liability for copyright infringement.

The U.S. Copyright Office also recognized that the current system is problematic. "There is good evidence that the orphan works problem is real and warrants attention," states a 2006 report by that office.