In another interesting project from the Cyberlaw clinic at Stanford, the Brewster Kahle, the president of the Internet Archive and Richard Prelinger, who are challenging the constitutionality of the Berne Convention Implementation Act. The suit seeks declaratory judgment:
(1) that the Berne Convention Implementation Act (BCIA) is unconstitutional under the Free Speech Clause of the First Amendment, and
(2) that the BCIA and Copyright Term Extension Act (CTEA) together create an “effectively perpetual” term with respect to works first published after January 1, 1964 and before January 1, 1978, in violation of the Constitution’s Progress Clause.
Kahle v. Ashcroft FAQ
Prof. Lessig: Save the Orphans
Pundit watch: you’ll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress’s transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.
Copyfight: Eldred III
Joe Gratz: New Constitutional Challenge to Copyright Law Revisions
The real villain here is the elimination of formalities (registration, deposit, renewal, and notice) in the 1976 Copyright Act and the subsequent elimination of the requirement of renewal wrought by the BCIA. Formalities are efficient. Only the copyright holder knows how much the copyright is worth to him; it would be costly for anyone else to find out, but he already knows. He’s the least cost information provider
More on this point later…
