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Brennan Center and Other Groups File Amicus Brief Challenging Laws That Shrink the Public Domain

Contact: Natalia Kennedy, 212-998-6736

January 28, 2005 - The Brennan Center for Justice, the American Civil Liberties Union of Northern California, and the nonprofit advocacy groups Public Knowledge, the Center for the Public Domain, and the First Amendment Project filed an amicus brief today in Kahle v. Ashcroft, arguing that Congress’s elimination of copyright renewal requirements in 1992 created serious First Amendment problems by radically shrinking the public’s access to works that belong in the public domain.

The groups challenged a ruling last year by the U.S. District Court in San Francisco that renewal requirements were simply “procedural formalities,” rather than important substantive limits on copyright. For this reason, the district court dismissed the Kahle lawsuit. The plaintiffs in the case, represented by the Stanford Center for Internet & Society, have appealed to the U.S. Court of Appeals for the Ninth Circuit.

The amicus brief argues that copyright formalities “served free expression values by allowing works whose owners are not concerned with copyright protection at the outset, or who would not renew that protection after a limited term, to enter the public domain.” Eliminating these “opt-in” requirements, the groups contend, has created many “orphan” books, films and music recordings that would otherwise have entered the public domain, and whose owners often cannot even be found.

The plaintiffs in the case are the Internet Archive and Prelinger Associates, which publish public domain films and other materials online. They estimate that if not for the elimination of renewal requirements, more than 85% of copyright-protected works would enter the public domain after the initial copyright term expired.

Marjorie Heins of the Brennan Center's Free Expression Policy Project, who authored the amicus brief, commented: “Formalities such as the original notice, registration, and renewal requirements of copyright law had the very important purpose of making sure that the public domain would be constantly enriched by a steady influx of new works.” As the brief argues, the district court, which dismissed the Kahle suit, “wholly ignored the scope and real-world impact of the procedural changes that transformed American copyright law.”

The full text of the amicus curiae brief in Kahle v. Ashcroft can be found at
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The Brennan Center for Justice at N.Y.U. School of Law unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. The Center’s Free Expression Policy Project (FEPP) provides research and advocacy on arts, culture, and media democracy.

The American Civil Liberties Union of Northern California is a regional affiliate of the American Civil Liberties Union, a nationwide, nonprofit, nonpartisan organization with approximately 400,000 members dedicated to the defense and promotion of the guarantees of individual liberty secured by the state and federal Constitutions.

Public Knowledge is a nonprofit advocacy and educational organization that seeks to address the public's stake in the convergence of communications policy and intellectual property law.

The Center for the Public Domain is a philanthropic foundation based in Durham, North Carolina, dedicated to the preservation of a large and robust public domain. Through grant making, original research, conferences, and collaborative programs, the Center seeks to call attention to the importance of the public domain and spur effective, practical solutions and responses to the challenges of information enclosure.

The First Amendment Project is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition.

Update: On January 22, 2007, the Ninth Circuit affirmed the district court's dismissal of the Kahle case, ruling that the Supreme Court's decision in Eldred v. Ashcroft, upholding the Copyight Term Extension Act, essentially disposed of the claim that changing to an opt-out copyright system violated the First Amendment. The court's decision was circular, because it was in Eldred itself that the Supreme Court said First Amendment scrutiny would be necessary when Congress changed "the traditional contours" of copyright.











The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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