Opt In v. Opt Out

Lawrence Lessig has been discussing Kahle v. Gonzales, here and here and follow the case here, a case brought on behalf of Brewster Kahle, founder of the Internet Archive (home of the Wayback Machine), challenging the constitutionality of the current copyright regime. Essentially, the case argues that the 1976 Copyright Act ushered in a fundamental change to copyright by creating automatic copyright protection for every work (opt out) and replaced the old standard of requiring works to be registered before being covered under copyright (opt in). The change brought by the 1976 Act is constitutionally significant as applied to free speech and thus the two recent copyright extensions (the 1992 Copyright Renewal Act and the Sonny Bono CTEA of 1998) should be held unconstitutional because they places unreasonable burdens on speech in violation of free speech.

The basis for the suit is much like that in Eldred v. Ashcroft, in that copyright law is being questioned on the basis of its harmful effects on free speech, but rather than challenge whether or not copyright terms are essentially perpetual (as was argued in Eldred), the Kahle case is focusing on the shift brought by the 1976 Act.

Here's a link to a copy of the appellate brief for the 9th Circuit (Kahle lost in the lower court). If you've ever wanted to read a good and concise summary of how copyright law has changed in 1976 and how that and more recent changes have caused problems, you would be well served to read the introduction to the case on pages 2 through 9.

However, I'm not sure I agree that a change to something pre-1976, that would require people to register their works before being protected, is something I'd actually want. Every time I write a post on this blog it is automatically covered by copyright without me having to do a thing. While I fully support others reading, linking, quoting, and otherwise spreading my work, I do enjoy the powers that copyright bestows on me (ie. the right to issue DMCA notices against sites that scrape my posts). Would I be inclined to deal with government bureaucracy every I wrote a new post? Absolutely not, especially given that having to flex my copyright enforcement muscles is a rare occurrence.

But I do have to say that I like the approach Lessig is taking in trying to solve some of copyright law's problems. To require that copyright laws pass first amendment muster before being enacted would be a welcome development that would help ensure that all creators, not just Big Content, have their interests represented.