The Internet Archive
[FN 2] is a public nonprofit that was founded to build an
Internet library, with the purpose of offering permanent access for researchers, historians, scholars,
and artists to historical collections in digital format. Founded in 1996 and located
in the Presidio of San Francisco, California, the Archive receives data donations and
digitizes source material from a multitude of sources, including libraries, educational institutions, and
[FN 3] is a commercial, for-profit moving image and sound archive that licenses
footage of historical images and sounds to numerous customers, from Hollywood motion picture
studios to broadcast and cable television networks and production companies to software developers
and publishers to advertising agencies, concert promoters, government agencies, artists, and nonprofit organizations.
Project Gutenberg Literary Archive Foundation (Project Gutenberg)
[FN 4] is the oldest and one of
the largest publishers of public domain literary works on the Internet. Beginning in
1971 with the Declaration of Independence, Project Gutenberg has published over 5000 ebooks,
and is currently adding almost 50 volumes every week. These are listed at
www.gutenberg.net and are available free of charge to anyone with Internet access. Project
Gutenberg is a public non-profit organization and operates almost entirely through the efforts
Libraries and archives have traditionally preserved and provided access to societys cultural artifacts.
In this era of digital technology, a new breed of libraries has sprung
up: digital archives. These archives, like all libraries, foster education, scholarship, and creativity
through access to information. But digital archives excel in providing access to the
ephemera, the gray material, the lost classicsmaterial which has been difficult for traditional
libraries to locate, acquire, and store. To serve their mission of preservation and
access, digital archives depend on volunteers, donations and, most especially, on the public
domain. Whether information such as a film is under copyright or in the
public domain largely dictates the scope and nature of public access provided by
archives. The Sonny Bono Copyright Term Extension Act of 1998 (CTEA)
[FN 5] frustrates the
Archives goals of preservation and universal access, thereby denying the public its rightful
access to public domain works. The Internet Archive, Prelinger Archives, and Project Gutenberg
submit this brief to increase the Courts understanding of the true cost of
the CTEA to our cultural heritage.
SUMMARY OF ARGUMENT
Digital technology is changing the world. The ones and zeros that travel to, from, and through the computers we use provide powerful opportunities, especially for storage and transmission of media. Digital technology makes flawless copying simple and worldwide distribution instantaneous. [FN 6] This ease of publishing and distributing means that material in the public domain that would otherwise have been lost forever can instead be rediscovered, restored, and made universally available.
As one result of this unprecedented ability to disseminate knowledge, the public domain
has assumed a growing role in education in this country and around the
world. Projects to digitize and distribute millions of out-of-copyright books, movies, and music
are now underway, supported and funded by volunteers, foundations, the government, and corporations.
Such projects also reclaim and preserve materials that commercial publishers, distributors, and rights-holders
have effectively abandoned, having deemed them commercially unviable. While rights-holders often let these
films decay and books disappear, this material is invaluable to scholars researching our
history, artists developing new art forms, and anyone seeking to explore our culture.
Digital technology allows us the opportunity to build a universal library out of
these materialsa library that dwarfs the collections of the Alexandria and even our
modern Library of Congress. This library will expand our understanding of public access.
It will make information accessible in formats that uniquely support and promote creativity
in the arts and sciences allowing individuals to clip and sample millions of
public domain words, films, and sound recordings with ease. At the same time
digitization will greatly reduce the cost of preserving our cultural history
[FN 8] and eliminate
deterioration caused by the physical handling of cultural artifacts. Through digitization, we can
inexpensively open the full contents of this new library to the public, especially
to those for whom access has been an ill-kept promisethe distant, the disabled,
and the poor.
These projects face one significant limitation: copyright. Because of copyright concerns, groups such
as the Archives are effectively limited to making available only works no longer
under copyright. Because Congress has repeatedly extended the duration of copyright adding to
the copyright term twelve different times in the last century alone digital archivists
are relegated to working with a public domain that no longer grows with
each passing year.
It was not supposed to be this way. Copyright was designed to balance
an authors incentive to create with the publics interest in free and unfettered
access to most works of authorship. As Justice Story explained, copyright will promote
the progress of science and the useful arts, and admit the people at
large, after a short interval, to the full possession and enjoyment of all
writings and inventions without restraint. Joseph Story, Commentaries on the Constitution of the
United States §502, at 402-03 (R. Rotunda & J. Nowack eds., 1987) (emphasis
added). The short interval in Justice Storys day was 14 years for most
works, and 28 years for a few. By contrast, under the CTEA no
work receives less than 70 years of protection, and a large percentage receive
more than 100 years. Copyright is out of balance. Congress has focused on
protecting authors to the exclusion of providing access to the public.
In an effort to justify this radical shift, copyright owners sometimes argue that
copyright protection actually enhances access by providing incentives for publishers to make works
available. Jack Valenti, President of the Motion Picture Association of America once said:
A public domain work is an orphan. No one is responsible for its
life . . . it becomes soiled and haggard . . . .
Jessica Litman, Digital Copyright 77 (2001).
We demonstrate in this brief, however, that in the digital world older works
are much more likely to be preserved and made available to the public
once their copyright expires. The ease and economy of digitally capturing, storing, and
distributing have reduced these costs to the point of insignificance. Works in the
public domain are being digitized and made freely available at an astonishing rate.
By contrast, the overwhelming majority of works from the 1920s and 1930sthose first
affected by the CTEAare not available from copyright owners at any price. Extending
the copyright term retroactively gives copyright owners a windfall for a few works
that they still consider valuable enough to release, while depriving the world of
the benefit of tens of thousands of works each year that digital archives
are ready, willing, and able to provide.
In the sections that follow, we describe four specific areas where digital archives promise to revolutionize learning and creativitygreater access, preservation, economy, and extension of works. We then demonstrate how the CTEA frustrates each to the detriment of the public interest by further diminishing the richest resource available to digital archives: the public domain. These four areas are not simply fringe benefits or surplusage residual from the creation of copyrighted works; they are the real benefit of the bargain that the public is entitled to enjoy. The public domain may ultimately prove more important to our nations progress than access to copyrighted works during their limited term. Should this Court permit the D.C. Circuits decision to stand, it will be turning its back on the intent of the Framers and this Courts consistent statements that copyright serves public as well as private purposes.
I. The Public Domain Is An Essential And Historical Part Of American Intellectual Property Law
In granting Congress the power to create copyrights, the Founding Fathers recognized that information and ideas were powerful yet ephemeral assets that required narrow and limited rights designed to promote American arts and sciences both economically and culturally. They sought to strike a balance between creating incentives for authors and ensuring that the resulting works were made available to the public.
The Founders focused the rights of authors through several explicit Constitutional limitations on
Congress grant of power. First, the Constitution requires that works be original so
that copyright owners cannot remove art and information from the public domain, declaring
dominion over something they did not create. Feist Publns v. Rural Tel. Ser.
Co., 499 U.S. 340 (1991); Graham v. John Deere & Co., 383 U.S.
1,5-6 (1966) (noting that Congress may not authorize the removal of knowledge from
the public domain or restrict free access to materials already available). Second, works
must promote the progress of the arts and sciences so the public receives
value in return for each monopoly grant. Trademark Cases, 100 U.S. 82 (1879).
Third, the First Amendment, at a minimum, requires that copyright law permit certain
fair uses of protected works to benefit society. Harper & Row, Publishers, Inc.
v. Nation Enterprises, 471 U.S. 539, 549 (1985); 17 U.S.C. § 107. Finally, the
Constitution permits the grant of copyrights only for limited times. U.S. Const. Art.
I, §8, cl. 8. The limited times provision guarantees that copyrights will eventually
expire, and that the public will ultimately receive the right to use all
A healthy public domain is essential to a healthy intellectual property regime. As
this Court stated in Harper & Row, copyright is intended to increase and
not to impede the harvest of knowledge. 471 U.S. at 545. To reap
these benefits, the public must not only be permitted to make certain uses
of works during the copyright term, but must also be free to make
unfettered use of works through public consumption, study, and re-exposition after the copyrights
expire. As the Harper & Row Court explained, copyright is intended to motivate
the creative activity of authors and inventors by the provision of a special
reward, and to allow the public access to the products of their genius
after the limited period of exclusive control has expired. Id. at 546 (emphasis
added). Thus, promoting public access to information is as important to intellectual property
policy as creative incentives.
Striving for balance between these goals is a consistent theme in this Courts
intellectual property cases. See, e.g., Graham, 383 U.S. at 9 (The patent monopoly
was not designed to secure to the inventor his natural right in his
discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge.);
Mazer v. Stein, 347 U.S. 201, 219 (1954) (The economic philosophy behind the
clause empowering Congress to grant patents and copyrights is the conviction that encouragement
of individual effort by personal gain is the best way to advance public
welfare . . . .); see also Fogerty v. Fantasy, Inc., 510 U.S.
517, 524 (1994) (The primary objective of the Copyright Act is to encourage
the production of original literary, artistic, and musical expression for the good of
the public.); Feist, 499 U.S. at 349-50 (stating that the primary objective of
copyright is to promote public welfare); Stewart v. Abend, 495 U.S. 207, 224,
224-25 (1990) (noting the Copyright Act's balance between the artist's right to control
the work . . . and the publics need for access); Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 167 (1989) (noting the
careful balance between public right and private monopoly to promote certain creative activity);
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984) (stating that the limited monopoly conferred by the Copyright Act is intended
to motivate creative activity of authors and inventors . . . and to
allow the public access to the products of their genius after the limited
period of exclusive control has expired); Twentieth Century Music Corp. v. Aiken, 422
U.S. 151, 156 (1975) (noting that private motivation must ultimately serve the cause
of promoting broad public availability of literature, music, and other arts); Goldstein v.
California, 412 U.S. 546, 559 (1973) (discussing Congresss ability to provide for the
free and unrestricted distribution of a writing if required by the national interest);
United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) (The sole interest
of the United States and the primary object in conferring the monopoly lie
in the general benefits derived by the public from the labors of the
From its origin in the Copyright Act of 1790 until Congress explicit revision
of the Act in 1976, copyright required authors to register their copyrights for
a distinctive first term, with an option to renew for a separate extended
[FN 10] At the time of the 1976 Act, the term of copyright was
28 years, with an option to renew for an additional 28.
[FN 11] The registration
and renewal processes were part of the so-called formalities of copyright law. Each
of these formalities provided different but equally important checks on the limited monopolies
granted by copyright. First, registration ensured that authors or those who held the
rights to their works could be located by those who wished to license
a work. Second, by requiring the copyright owner to actively renew his or
her rights in a work, it forced the owner to consider the value,
ensuring added protection was only afforded when the rights-holders remained actively interested in
exploiting their works. The formalities eliminated the problems of absent, missing, dead, out
of business, or uncaring rights-holders, thus providing some balance to the additional years
of protection offered by Congress.
In 1976, Congress undertook a tremendous and unprecedented overhaul of U.S. Copyright Law.
Having passed a series of short-term extensions in 1965, 1967, 1968, 1969, 1970,
1971, 1972, and 1974, Congress finally removed the registration requirements, extending copyright for
all works, registered or not, to the full life plus 50 or 75
years. Later, in 1992, Congress automatically renewed all remaining copyrights, regardless of whether
the owner sought to renew the work.
[FN 12] So expired the procedural guardians of
the public domain; so began Congress efforts to undermine the constitutional protections of
Progress and limited times.
A quick look at the registration and renewal data for years before 1976
shows that an overwhelming majority of works fell into the public domain because
creators did not seek extended copyright protection.
[FN 13] For example, of the 25,006 works
registered in 1883 a mere 894 were renewed in 1910.
[FN 14] Thus over 96%
of works from that year fell into the public domain after only 28
years despite the availability of additional copyright protection. Later numbers show that copyright
owners continued to let the overwhelming majority of their works lapse throughout the
first part of the 20th Century.
[FN 15] As a result of the 1976 Act
and the 1992 amendments, all copyrighted works under this two-tiered system received 47
additional years of protection, regardless of whether or not the copyright owner intended
to register the work. Under the CTEA, these works now have 67 more
years. If 96% of owners did not care enough to renew their copyrights
after 28 years, there is no reason to expect that when handed decades
of additional, unsought protection they will become devoted caretakers. These are the real
orphans of the copyright system the soiled and haggard works that Congress has
endowed with unwanted and unsupervised additional protection.
Both the history of this country and the history of this Court have
proven that the public domain is a fundamental part of copyright law. The
elimination of important constitutional and prudential restraints places extraordinary pressure on the few
remaining counterbalances, such as fair use, inhibits the growth of the public domain,
and impedes our progress.
II. The CTEA Prevents Works That Have Reached The End Of Their Proper Copyright Term From Entering The Public Domain
By unconstitutionally extending the term of copyright, the CTEA single-handedly deprives our schools, libraries, and children of enjoying almost any benefit that digital archives have to offer. The CTEAs retroactive and prospective extensions have frozen the public domain in time.
When one asks the leading experts on digital archiving what is the single
most significant barrier to preserving our cultural heritage? one uniform answer resounds: copyright
concerns. Panel on Digital Libraries, Presidents Information Technology Advisory Committee (PITAC), Digital Libraries:
Universal Access to Human Knowledge 21 (2001), at http://www.ccic.gov/pubs/pitac/pitac-dl-9feb01.pdf; Michael Lesk, Practical Digital
Libraries 223 (1997) (Issues related to intellectual property law are the most serious
problems facing digital libraries.).
[FN 16] The future of digital archives depends on a predictable
and reasonable limit to copyright terms. Until works reach the end of their
term, it is simply impossible for librarians and archivists to seek rights from
millions of copyright owners. Unless copyrights expire after limited times, millions of historical
and cultural works will be unavailable to the majority of the public and
will continue to disappear in their original form. The ultimate dedication of these
works to the public domain will be the promise that never comes due.
Consider some statistics. In the year 1930, 10,027 books were published in the United States. [FN 18] In 2001, all but 174 of these titles are out of print. [FN 19] While a copy or two may exist in a library or a used bookstore, the copyright holders cannot or do not make these titles available to the public. But for the CTEA, digital archives could inexpensively make the other 9,853 books published in 1930 available to the reading public starting in 2005. Yet because of the CTEA and the likelihood of future term extensions, we must continue to wait, perhaps eternally, while works disappear and opportunities vanish.
Digital archives can provide public to access these rare works that are no
longer made available by the copyright holder if they enter the public domain.
A case in point is the Steven Spielberg Digital Yiddish Library, which houses
twelve thousand digitized Yiddish books. This library has helped turn a dying literature
into the most in-print literature on the planet.
[FN 20] Digitization of these works, most
of which are in the public domain, brings both a literature and an
enriched understanding of the Yiddish culture to people across the globe.
Other parts of our culture and heritage remain obscured behind the wall of
copyright. The early volumes of periodicals, such as The New Yorker, Time Magazine,
and Readers Digest provide an unparalleled window into early 20th century American life
[FN 22] Unlike the Yiddish literature in the Spielberg library, few if any
of these works can be found online because they are still under copyright.
Until they fall into the public domain, the process of clearing rights for
each article, drawing, and photograph makes digital archiving of such composite works practically
The Prelinger Archives faces this dilemma every day. Prelinger began collecting ephemeral films
in the early 1980sfilms of critical social and historic value that have been
orphaned or abandoned by their copyright owners. These include industrial motion pictures, home
movies, advertising clips, training and educational films, outtakes, and newsreelsthe kind of images
featured in shows like The Twentieth Century with Walter Cronkite and in the
ground-breaking historical documentary Atomic Café. In 1985, Prelinger formalized his archive to promote
the reuse of public domain moving image works.
Of the 48,000 films in the Prelinger Archives, close to 60% (approximately 28,800)
are in the public domain. The other 40% (approximately 19,200) remain under copyright.
A peculiar attribute of Prelingers collection, and almost all film archives, is that
the dividing line between public domain films and copyrighted films splits almost exactly
along the year 1964. Close to 85% of Prelingers pre-1964 films are in
the public domain, compared to only 28% of post-1963 films.
[FN 23] This disparity results
solely from Congress multiple extensions of copyright from 1964-1976 and the automatic renewal
of 1992, making 1963 the last year that non-renewed works actually fell into
the public domain. Prelinger cannot offer copyright protected films for stock footage or
allow off-site public access. The 1992 Amendment obliterated the publics pending rights to
these films and kept the films cloistered behind the walls of their copyrightdespite
the lack of interest from their owners in renewal or use of their
[FN 24] Because of the elimination of the renewal requirement, the perpetual extension of
copyright term and the enormous clearing costs imposed by the post-1976 lack of
formalities, a substantial portion of Prelingers growing collection of important social and historical
films remain off limits to the public.
In Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), the District
of Columbia Court of Appeals completely ignored the role of the public domain
in copyright law as set forth within Art. I, § 8. cl. 8 of
the Constitution. The Court of Appeals stated that Congress would exceed its power
under the Copyright Clause if it made copyright protection permanent. Eldred, 239 F.3d
at 377. But then, with a wink and a nod, it gave Congress
the go-ahead to perpetually extend copyright protection as long as each extension comes
with a date certain. In holding that the introductory language of the Copyright
Clause fails to impose any substantive limit on congressional power, and that said
power is immune from First Amendment scrutiny, the Court of Appeals reduced the
public domain to an illusion.
Without some check on Congressional power, it is unlikely that any of the
cultural and historical works from the first half of this century will ever
enter the public domain. Limits must be found. If this Court does not
require Congress to respect the limitations of promoting and limited times, the public
will never experience the value of the vast majority of works createdthe value
made real by digital archives.
III. Digital Archives Breathe New Life Into The Public Domain
In the modern world of publishing, the public domain presents a thriving and
vibrant area of learning and creativity. Far from the moldering books and deteriorating
dusty film canisters of previous decades, todays collections can be digitally stored, accessed
and distributed. This new global decentralized platform revolutionizes access and use of public
A. Digital Archives Allow Us To Preserve Our Cultural Heritage
1. Copyright Owners Fail To Preserve The Vast Majority Of Creative Works For Public
Millions of copyrighted works are created every year. In comparison, the number of
works actually maintained and available to the public is quite small. Today, the
number of volumes available for purchase in the US is a tiny fraction
of the volumes published in the United States.
[FN 25] Libraries and archives preserve some
of the books no longer for sale. However, public access to literary works
under a system of physical archiving is fiscally and spatially constrained. The combined
archives of public research libraries in the United States hold approximately 600 million
titles total, a small percentage of the worlds published works over the last
[FN 26] Moreover, every year, physical decay and accidental loss (not to mention
limited shelf and storage space) reduce the number of books actually available. This
diminution of available copies applies equally to movies and sound recordings.
Like the D.C. Circuit, Amici believe that preserving access to works that would
otherwise disappear . . . promotes Progress. Eldred, 239 F.3d at 380. Despite
the supposed incentives copyright offers to authors and publishers, today much of our
cultural heritage lies fallow, withheld from the public domain by bloated copyright terms,
and removed from the stream of commerce because copyright holders reap little profit
from them. The truth is that by the time even pre-CTEA copyright terms
expire, few books, movies, or musical works are being published for profit. Most
copyright owners let their works fall out of print, letting them languish in
The full benefits of our entire cultural heritage are forestalled while a few copyright holders derive profit from a relatively small number of works. For some works, extending the period between their decline in profitability and their entry into the public domain is more than just a delayit is abandonment. For works recorded on film and other less stable mediums, the CTEA extension threatens to lock them up beyond the time when they can be truly preserved. If the CTEA stands, the publics share of the copyright bargain will in many instances literally blow away on a breeze. The only way to revive these works is to let them reach the natural end of their term so that they fall squarely into the public domain. Once there, digital archives can save these works for future generations.
2. Digital Archives Preserve Copyrighted Works and Prevent Their Permanent Loss
Digital archives offer a solution to the problem of preservation. Films, books, and
sound recordings that enter the public domain can be digitized quickly, efficiently and
cost-effectively ensuring the availability of their content and protecting the original work against
further deterioration. Every week, Project Gutenberg publishes the e-texts of almost fifty public
[FN 29] Digitizing a film, a book, or a sound recording makes a
perfect copy of the work. Without harming the original, further copies can be
rendered as backups, preventing a catastrophe such as the great fire in Alexandria
from destroying our heritage.
Our culture is exploding off the printed page into film, video, and sound.
The world produces between one and two exabytes (a billion, billion bytes) of
information each year.
[FN 30] Only a tiny percentage (0.003) of this creativity takes the
form of a printed page.
[FN 31] The vast majority of this information takes the
form of sound, images, and numeric data.
[FN 32] With each passing day it becomes
increasingly important that our libraries have the ability to collect and store these
formats. Without digital archiving, the increasing cost and diminishing opportunity to preserve these
works will nullify our efforts to save them for future generations. Utilizing currently
available digital technology, we can build comprehensive collections that capture media works in
their most pristine forms and preserve them forever.
Librarians and archivists have long been the stewards of our cultural history. The passage of the CTEA does not change authorial incentives in support of preservation. Instead, it keeps creative works from librarians and archivists who stand ready to preserve them all, not just a favored few.
B. Digital Archives Promote Full Public Access To Our Cultural Heritage
Digital archives hold out the promise of universal access to our cultural heritage. Todays libraries provide free public access for some people to some of this heritage. However, any single physical library can contain only a small fraction of humanitys cultural artifacts [FN 33] and primarily serves its proximate community. As mentioned above, millions of copyrighted works are created every year, yet after 95 years, few remain in circulation. Most books are out-of-print; many movie reels and recordings are lost or damaged. [FN 34] For a large segment of the public, especially those in rural and remote locations and those searching for material on a tight timetable, our cultural reserves are essentially out of reach.
In contrast, the Internetthe dominant platform for access to digital archives provides relatively
unlimited low cost capacity to support both the archiving of, and universal access
to, traditional printed works, as well as audio, video, and still images.
[FN 35] As
this Court explained in Reno v. ACLU, the Internet is comparable to a
vast library including millions of readily available and indexed publications. Reno v. ACLU,
117 S. Ct. 2329, 2335 (1997). The Internet was created to serve as
the platform for a global, online store of knowledge, containing information from a
diversity of sources and accessible to Internet users around the world. ACLU v.
Reno, 929 F. Supp. 824, 836 (E.D. Pa. 1996), aff'd, 117 S. Ct.
2329 (1997). Just as this platform has lifted so-called public records out of
practical obscurity and provided the fodder for controversial new products and services, it
offers the chance to bring the creative works housed in the stacks and
files of our libraries and archives to the public on a scale that
heretofore seemed unimaginable. For example, the public downloads a million copies of ebooks
from Project Gutenbergs main server each month.
[FN 36] Internet-based digital archives are the true
embodiment of the public domain.
Most libraries have a copy of the Complete Works of Shakespeare, a few volumes of Plato, two or three of Mark Twains novels, perhaps a smattering of Dickens. Project Gutenberg offers several editions of Shakespeare, 31 works of Plato, 50 of Twain and 56 of Dickens. [FN 37] Online access to Miltons Aeropagitica (Gutenberg #608) or Leonardo Da Vincis Notebooks (Gutenberg # 5,000) is also available. Whether ones taste runs to Gullivers Travels (Gutenberg #829) by Jonathan Swift or The Adventures of Tom Swift by Victor Appleton (25 volumes), access is easy, no matter how small or underfunded the local library.
Digital film archives provide unique benefits. The analog nature of film means that
every viewing of the original work slowly consumes the very film being viewed.
The Internet Archive recently borrowed 1,001 key public domain archival films from Prelinger
Archives. These films were transferred to videotape, digitized, and published online at http://www.moviearchive.org.
Between January 2001 and April 2002 alone, these movie files were downloaded over
1.2 million times by individuals some distance from New York or San Francisco.
By contrast, in the entire year 2000, the public only accessed approximately 2,000
physical film clips through Prelingers designated representatives and held approximately 200 physical access
events. Removing the barriers of time and distance digital access allowed the public
to view Prelingers films over 500 times more often than physical access while
still preserving the original copies for future generations.
This kind of exponential increase in access is the key to disseminating some
of our nations most influential moments in history. Consider for instance, the Zapruder
film which documents President Kennedys assassination. Television specials every year license this clip.
It is one of the most shocking and important bits of film in
American history. Almost every analysis of the assassination of John F. Kennedy depends
on the flims contents, just as it requires the Warren report. When will
the Zapruder film, like the Warren Report, be available to the public unconditionally?
The importance of these ephemeral films to our society cannot be overlooked. Film
is the rare medium of full immersion. Its ability to transport us to
distant times and places is unmatched. It imparts intimate knowledge of ourselves as
a society and documents our advances and shortfalls in technology, culture, politics, economic,
and civil rights. It literally allows us to bear witness. Films provide contemporaneous
and visceral exposure to the real events, feelings, and reactions of Americans during
critical moments in our history the violence in Birmingham, Alabama, Martin Luther Kings
March on Selma, the Watergate Hearings, and the Tet Offensive influenced the political
and moral opinions of millions of Americans.
[FN 38] Similarly the images from September 11th
2001 shaped our views of national security, terrorism, and world affairs. Under the
CTEA, these works will not be available until 2097. Most of us who
witnessed the tragedy will be deceased by the time Americans can view them
As the public domain shrinks, so too does the ability of digital archivists to preserve and provide public access to cultural works. Digital archives can bring the public domain into schools, libraries, and homes across the globe. Indeed, for most works, only digital archives could do so.
C. Digital Archives Support Rich And Diverse Use Of Our Cultural Heritage
Digital archives foster new and innovative use of works in the public domain. For the Prelinger Archives, the transition to digital format created a dramatic increase in public screenings, classroom screenings, individual scholarly research projects, and low-budget productions. Very few if any of these users would have been able to access the archives previously, according to Prelinger.
Digital archives also offer academics and cultural inquisitors the opportunity to exploit highly efficient and productive search tools. The Library of Congress (LOC) preserves a collection of nearly 121 million items, more than two-thirds of which are in media other than books. Previously, physically searching through the index to this collection, assuming one was able to make the trip to our nations capital, took days or even weeks. Now, one can simply go to www.loc.gov and search the catalog within minutes.
But many answers needed by researchers lie beyond a title, author or abstract, especially for media other than books. Technologies now exist that allow one to search the actual contents of the LOC collection, i.e. the words on the pages, the images on the films, or the sounds on the recordings, from ones home, school, or office computer. Many software programs now include the capability to perform Optical Character Recognition (OCR), a process by which the program will allow the user to search the pages of the digitized document for each and every occurrence of a word. [FN 40] The ebooks at Project Gutenberg are already available for search via OCR technology.
Imagine that any child, student, philosopher, reporter, or scholar could simply go to
an Internet library the size of the LOC from his or her home
or work computer, search for documents in the public domain, and then search
and view those documents within a matter of minutes. Imagine that those who
are blind or deaf can use tools that translate these works on the
flyinto a format that meets their needs. Imagine that individuals in other countries
have the tools to translate these works into their native tongue in real-time.
Think of the difference it could make in bringing our cultural heritage to
the public and educating the populace. This is where technology and imagination are
leading us; this is where the CTEA forbids us to go.
D. Digital Archives Extend Our Cultural Heritage
Beyond preservation and accessibility digital archives provide the public with unprecedented opportunities to use our cultural heritage as the creative basis for the next generation of artistic and informative works. [FN 41] The ability to digitize vastly increases the capacity to incorporate our history and culture into new works. Unlike physical media, digital media allow the average individual to easily quote and cite movies, by clipping and sampling. Such quotation and citation not only augment the quality of scholarly work but also reintroduce older works into present-day popular consciousness. [FN 42]
This ability is made more important and more powerfulas audio and visual recordings flourish. One can allude to or reference a printed work by quoting a short passage or citing the publication. Visual and auditory media, however, present a far more complex arena for allusion and citation. If one wishes to reference a visual image, it is often necessary, if not essential, to show that image within ones own work, a process made simple by digital archives.
Recently, the Internet Archive held a filmmaking contest. It asked amateur filmmakers around
the world to create a short film of less than 10 minutes showing
a perspective on an historical event associated with war. The films could be
true stories, parodies or fiction. In creating these films, the Archive asked filmmakers
to limit their resources to free content found in archives across the Internet,
including the 1,001 films of the Prelinger Archives stored at moviearchive.org. The submissions
each conveyed a powerful and timely message about war and society. These new
creative works were built exclusively through the use and reuse of public domain
[FN 43] Submissions came from such diverse participants as a fifth grade class
in a District of Columbia public school and an individual in Finland. Such
commentary, from such creators, would not have been possible before the advent of
digital film archiving.
Similarly, younger generations of Americans immerse themselves in their musical heritage, interacting with it rather than merely reacting to it. An emerging form of music called mash-up showcases the creativity of youth through the creation of entirely new songs using only bits of older musicthe more eclectic, even odd, the combination the better. [FN 45] Yet, this new musical genre suffers under Congress habitual copyright extensions and the abolition of the formalities. Though a mash-up album by a Belgian group was cited by music executives as one of the best recordings of 2002, the group managed to clear the rights for it only after nine months of work and then only in Belgium, Luxembourg and Holland. [FN 46]
The ability to interact with one's culture to create newly meaningful works is a precious piece of the public's interest in copyright. [FN 47] Authors and other creators should not have to wait nearly a century until copyright has expired to cast new light on our cultural heritage. Under the CTEA, such works will only be penned by strangers to the time and place of the original work and not by those alive during the era of its creation.. [FN 48]
E. Digital Archives Make Preservation And Access More Economical
Although much is currently done with volunteer labor and donations, digital archiving is not free. Yet because we need only a single digital copy of a work to preserve it in perfect condition for a virtually unlimited duration and for universal use, digital archives make preservation and enhanced access realistic and cost effective.
For example, the costs for physically preserving a single color feature film by
copying can run to $40,000 or more, and the short lifespans once thought
to be a problem only for nitrate now confront nearly all films.
[FN 49] By
contrast, the entire cost of digitizing a film is $200 per hour of
[FN 50] It is a single cost, paid once per film per lifetime. Once
digitized, the cost of storing, maintaining, transmitting and making back up copies of
the film approaches zero.
[FN 51] Digital files can be maintained, transferred, and backed up
automatically by current software without human intervention. Digital archives will cheaply and efficiently
save millions of works from dereliction and destruction.
The return on digital archiving is higher still. Federal and state governments continue
to spend taxpayer funds to wire our schools, libraries, and community centersto connect
them to the Internet.
[FN 53] As a nation we have made a commitment to
provide a broad swathe of the public with access to this new platform
for communication, research, and publishing. But to what have we provided access? If
the CTEA stands it will not be the wealth of information and knowledge
housed in our cultural institutions. For the rest of this century no new
treasures will enter the public domainthey will remain offline and out of reach.
We will have given our children the keys to this library, but they
will enter only to find half-empty shelves.
Digital archives constitute the difference between a nominal public domain and a real, robust public domain. Their growth and maturity depends on limits to copyright. Digital archives are ready to serve the needs of children, researchers, and the public. But they will never get that chance unless Congress is prevented from making copyright protection perpetual. Amici Internet Archive, Prelinger Archives and Project Gutenberg respectfully request this Court to enforce the publics right to preserve and access its heritage by striking down the CTEA as an unconstitutional extension of the copyright term beyond the enumerated powers given to Congress by the United States Constitution.
Deirdre K. Mulligan,
Counsel of Record
Samuelson Law, Technology and Public Policy Clinic
Boalt Hall School of Law
Jason M. Schultz
Fish & Richardson, P.C.
Boalt Hall School of Law
Jennifer M. Urban
Samuelson Law, Technology and Public Policy Clinic
Boalt Hall School of Law
Steven M. Harris
FN 1 Letters from all parties consenting to the filing of this brief are on
file with the Clerk of this Court. No counsel for a party authored
this brief in whole or in part, and no person or entity other
than amici curiae, or their counsel, made a monetary contribution to the preparation
or submission of this brief. Professor Lemley contributed to this brief in his
personal capacity, and its contents should not be attributed to his employers.
FN 2 For more information on the Internet Archive, see http://www.archive.org/about/index.html
FN 3 For more information on Prelinger Archives, see http://www.prelinger.com/prelarch.html
FN 4 For more information on the Project Gutenberg Literary Archive Foundation, see http://www.gutenberg.net
FN 5 Copyright Term Extension Act of 1998 (CTEA), Pub. L. No. 105-298, 112
FN 6 But, with the increased availability of broadband Internet access you can bring
down a full-length motion picture in less than 15 minutes . . .
. Press Release, Motion Picture Association of America, Valenti Warns The Dangers Of
Internet Piracy Before Congressional Subcommittee (October 28, 1999), at http://www.mpaa.org/jack/99/99_10_28a.htm
FN 7 Raj Reddy, Infinite Memory and Bandwidth: Implications for Universal Access to Information
(April 6, 2001) at http://www.cc.gatech.edu/external.affairs/anniversary/rajreddy.ppt
FN 8 True preservation aims to save both the content and the media in
its original form. Media created in digital form are preserved in digital form;
digitizing other works ensures at least some minimal preservation of content but does
not meet the full goals of preservation.
FN 9 See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 443 n. 23 (1984) ([S]ince copyright protection is not perpetual, the number
of audiovisual works in the public domain necessarily increases each year.).
This Courts assumption about the public domain in Sony is
undermined by the CTEAs retroactive exclusion of works from entering the public domain.
FN 10 See generally Tyler T. Ochoa, Patent and Copyright Term Extension and The Constitution:
A Historical Perspective, 49 J. Copyright Socy 19, 29-45 (2002). While this Court
interpreted the 1909 Act as requiring at least notice if not registration, see
Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L.
Ed. 470 (1939), the language of the Act itself was not officially changed
to remove the registration requirement until 1976.
FN 11 Id.
FN 12 Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 266
(June 26, 1992) (amending Sec. 304 of Title 17 to make renewal automatic
and renewal registration optional for works originally copyrighted between January 1, 1964 and
December 31, 1977). In fact, Congress enacted this unprecedented change directly against the
recommendation of the Register of Copyrights. In a report submitted to Congress in
1961, the Register specifically recommended that if a term extension was warranted, Congress
should retain the two-term structure and simply extend the renewal term to forty-eight
years. Ochoa, supra note 10, at 39.
FN 13 See Register of the Library of Congress, Registers Report, in 2 Studies
on Copyright at 1251 (Arthur Fisher Memorial ed., June 1960) (Experience indicates that
the present initial term of 28 years is sufficient for the great majority
of copyrighted works: less than 15 percent of all registered copyrights are being
renewed at the present time.) (emphasis added); Barbara A. Ringer, Study No. 31:
Renewal of Copyright, in 1 Studies on Copyright 513-514 (Arthur Fisher Memorial ed.,
June 1960) (The committee reports accompanying these bills indicate clearly that the purpose
of adding the renewal device was to allow the large bulk of copyrighted
works to fall into the public domain at the end of a short
definite term, while permitting a much longer term for works of lasting value.
(discussing Congressional proposals in 1906-1908 to change copyright term and renewal periods)); H.R
Rep. No. 7083, pt. I, at 14 (1907):
It is said that under existing law no extension of the term beyond the first period of twenty-eight years is asked for on 95 percent of the copyrighted books. Your committee provide [sic] in this bill that unless within the year next preceding the expiration of twenty-eight years from first publication the copyright proprietor shall give notice that he desires the full term, the copyright shall cease at the end of twenty-eight years. It is believed that under this provision more than 90 percent of copyrighted books will fall into the public domain as early as they would under existing law.
The comments of the Senate committee were to the same effect. See S. Rep. No. 6187, pt. I, at 7 (1907) (noting that [t]hese provisions were aimed at putting ephemeral works in the public domain after 28 years, and at making it easy for the public to determine when a copyright would expire.)
FN 14 1883 registrations 25,006 1910 renewals 894 3.57%
1890 registrations 42,789 1917 renewals 1,845 4.31%
1900 registrations 94,798 1927 renewals 4,686 4.94%
1910 registrations 108,067 1937 renewals 8,589 7.94%
1920 registrations 124,450 1947 renewals 13,201 10.60%
1930 registrations 166, 855 1957 renewals 21,473 12.86%
1932 registrations 124,500 1959 renewals 21,500 17.27%
Ringer, supra note , at 618, Tbl 2 .
FN 15 Id.
FN 16 See also Copyright Term Extension Act: Hearings on H.R. 989 Before the
Subcomm. On Courts and Intellectual Property of the House Comm. On the Judiciary,
104th Cong., 1st Sess. 10 (1995) (statement of Dennis S. Karjala, Professor of
Law, Arizona State University College of Law) (As a result [of passing the
CTEA], current authors who wish to make use of any work from this
period [after 1923], such as historians or biographers, will need to engage in
complex negotiations to be able to do so. Faced with the complexities of
tracking down and obtaining permission from all those who by now may have
a partial interest in the copyright, a hapless historian will be tempted to
pick a subject that poses fewer obstacles and annoyances.).
FN 17 Project Gutenberg estimates that, based on current growth rates for creating ebooks,
virtually all pre-1923 public domain books could be available online by the end
of the decade. But for the CTEA, we could already have digital copies
of the original Winnie the Pooh by A.A. Milne (1926), The Magic Mountain
by Thomas Mann (1927), The Great Gatsby by F. Scott Fitzgerald (1925) and
The Prophet by Khalil Gibran (1923) to name but a few.
FN 18 American Library Annual and Book Trade Almanac for 1872-1957 (Almanac).
FN 19 Books in Print Online (BIP), at http://www.bowker.com.
FN 20 Eric Goldsheider, For a Dying Literature a Digital Savior, N.Y. Times, May
6, 2002, at A19.
FN 21 See also The Bibliotheca Alexandrina: A Truly Digital Library for the 21st
Century, at http://www.archive.org/news/bibalex_p_r.html (documenting the Internet Archives donation of facilities to scan 50,000
Arabic books for distribution on the Internet).
FN 22 The promise of reviving these early icons of Americana from obscurity is
not merely speculative. The Frank Capra movie, Its a Wonderful Life lay gathering
dust in a movie studio until in the early 1970s when its copyright
expired. Soon after becoming part of the public domain, it was aired by
Public Broadcast Stations and quickly became a Christmas tradition on many stations and
for many families. See Roger Ebert, Its A Wonderful Life, The Chicago Sun-Times,
Had the CTEA extension been in place, this classic film would not
have reemerged until 2041.
FN 23 Of the 16,226 films Prelinger has formally researched for copyright clearance, 9,128
(56.26%) are pre-1964 and 7,098 (43.74%) are 1964 and later. Of the pre-1964,
1,110 are still copyrighted (15.81%) and 6,022 (84.19%) are public domain. For films
1964 and later, 1,432 (72.32%) are copyrighted and only 548 (27.68%) are public
domain. Prelinger believes these numbers are typical and expects that as he searches
the remainder of his collection, he will find similar percentages on either side
of the 1964 cut-off date.
FN 24 See supra notes 13-15. See also Letter dated March 31, 1997, from
Larry Urbanski, Chairman of the American Film Heritage Association, to Senator Strom Thurmond,
opposing S. 505, at http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/letters/AFH.html (There is an important industry in the United
States, dependent on film in the public domain. Past copyright legislation has reduced
the number of motion pictures in public domain considerably, causing hardship for this
industry. Commercial film archiving and film preservation has already stopped for works created
after 1962 thanks to automatic renewal. [The CTEAs] extension will further hamper commercial
FN 25 For example, in 1910, 13,470 books were published in the United States. Almanac,
supra note 19. In 2001, only 180 of these titles are available for
purchase from any publisher worldwide. BIP, supra note 19. The numbers for other
decade years are similar: 1920 (8422 published, 307 in print in 2001); 1930
(10,027 published, 174 in print); 1940 (11,328 published, 224 in print); 1950 (11,022
published, 431 in print). Compare Almanac with BIP. The number of published books
has dramatically increased, e.g. 1984 (57,087), 1995 (65,288), 1996 (57,132). BIP, supra. Thus,
the number eventually lost to the public because of excessive copyright terms will
be even greater in years to come.
FN 26 National Center for Education Statistics, U.S. Department of Education, NCES 2001-341. Academic
Libraries in the United States: Fiscal Year 1998, Tbl 5A (providing total number
of paper volumes: 878,906,177; total number of paper titles: 495,724,813; total number of
microform units: 1,062,082,077; total number of electronic titles: 3,473,225, and total number of
audio-visual materials-units: 92,305,707).
FN 27 In 1994, the Librarian of Congress stated, Of America's feature films of
the 1920s fewer than 20% survive; and for the 1910s, the survival rate
falls to half that. James H. Billington, Librarian of Congress, Preface to Redefining
Film Preservation: A National Plan: Recommendations of the Librarian of Congress in consultation
with the National Film Preservation Board (August, 1994) at http://www.loc.gov/film/plan.html . According to
Rick Prelinger, many films are lost every year because many small copyright holders,
like educational publishers, must eliminate their stock for next years supply; worse yet,
these firms commonly go out of business or file for bankruptcy, often resulting
in loss of all copies of past works.
FN 28 See supra note and accompanying text. It is worthy to note that
the rights afforded to copyright owners under 17 U.S.C. § 106 do not address
maintenance of works. Therefore, it can be presumed that there are few if
any incentives for copyright owners to preserve works. That responsibility has been, and
should be, left to our public libraries and archives as guardians of the
FN 29 Project Gutenberg, with the support of the Vital Spark Foundation and in conjunction
with ClassicalArchives.com, is currently putting the scores of 50 works of classical music
on line. These scores are available for use by students and performers. They
can be marked up for their own performances. Creation of computer-generated performance from
the scores is also supported.
FN 30 Peter Lyman and Hal R. Varian, How Much Information, Executive Summary (2000),
FN 31 Id.
FN 32 Id.
FN 33 United States public libraries contain approximately 784,562,000 volumes. National Center for Education
Statistics, U.S. Department of Education, NCES 2001-307, Public Libraries in the United States:
Fiscal Year 1998, Table 7 (2001).
FN 34 See supra notes 18-22 and accompanying text. See also Redefining Film Preservation, supra
note § 1 (The key conclusion of Film Preservation 1993 is that motion pictures
of all types are deteriorating faster than archives can preserve them. Film is
a fragile medium, intended for brief commercial life . . . .).
FN 35 Panel on Digital Libraries, Presidents Information Technology Advisory Committee (PITAC), Digital Libraries:
Universal Access to Human Knowledge 21 (2001) page 2, at http://www.ccic.gov/pubs/pitac/pitac-dl-9feb01.pdf
FN 36 Project Gutenberg publishes from scores of servers around the world; including over
a dozen in the U.S.; thus, the total monthly downloads worldwide are probably
several times those downloaded from the main U.S. servers.
FN 37 Sinclair Lewis is represented with four works in Project Gutenberg, but his
Elmer Gantry (1927) will not be available for another 19 years under the
FN 38 See generally David J. Garrow, Protest at Selma: Martin Luther King, Jr. and
the Voting Rights Act of 1965 (1978) (discussing the influence of television on
the politics of the civil rights movement); see also http://exchanges.state.gov/education/engteaching/pubs/AmLnC/br40.htm ( . .
. police violence, shown on national television, sickened the country; within hours, tens
of thousands of volunteers were heading south to join King in the march.);
Peter Braestrup, Big Story: How the American Press and Television Reported and Interpreted
the Crisis of Tet 1968 in Vietnam and Washington (1977); Robert J. Donovan
and Ray Scherer, Unsilent Revolution: Television News and American Public Life, 1948-1991 (1992),
excerpted at http://www.mtr.org/seminars/satellite/civilrights/civil1.htm .
FN 39 See, e.g., Letter dated October 10, 2001, from David K. Allison, Chairman,
Information Technology and Society, Smithsonian National Museum of American History, to Brewster Kahle,
Founder, Internet Archive, at http://www.archive.org/images/smithsonian50pct1.jpg (Much of the most valuable historical information of
our time is being communicated over the Internet and broadcast channels. By developing
a systematic and cost effective way to preserve this information in a central
repository, you are building an invaluable collection that will serve scholars and the
general public for years to come
.I can think of no better example of
the importance of your work than your capture of the global response to
FN 40 For more information on OCR Technology, see Adobe Systems Incorporated, Adobe Acrobat
Capture 3.0, at http://www.adobe.com/products/acrcapture/fullfeature.html
FN 41 See generally Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990);
David Lange, Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981).
FN 42 Businesses recognize the value of their corporate heritage for developing their message
and image today. They too are creating digital archives of their creative works.
See Allison Fass, Online Archive for Coke Advertising, N. Y. Times, December 10,
FN 43 To view the winning film as well as the other submissions, go to
FN 44 See also Amy Harmon, Star Wars Fan Films Come Tumbling Back to
Earth, N. Y. Times, April 28, 2002, at 2-28. (When word began circulating
on the Internet in December that Lucasfilm would be a co-sponsor of a
Star Wars contest for fan-made films, to be judged by George Lucas himself,
members of the growing digital underground felt as if the Force was finally
with them. How cool is this? read the first of many messages on
TheForce.net, the home to more than 50 amateur films inspired by Mr. Lucass
Star Wars series.).
FN 45 See Neil Strauss, Spreading by the Web, Pops Bootleg Remix, N. Y.
Times Online, May 5, 2002, at http://www.nytimes.com/2002/05/09/arts/09MASH.html The desire to interact with music
to create a newly meaningful pieces is not only the dominion of the
young. Traditional art forms such as classical, folk, blues and bluegrass have all
benefited from use of old melodies and phrases to create new, fresh sounds.
Digital technology, however, gives rise to the promise that culturally important musical derivative
works will flourish, as complex combinations are simple and relatively inexpensive to create.
Copyright term extensions deprive the young of what older generations of musicians have
taken for granted.
FN 46 See id.
FN 47As one copyright scholar stated: Artistic freedom to create derivative works from the
public domain is a significant public benefit, as shown by musical plays like
Les Miserables, Jesus Christ Superstar, and West Side Story, the recent spate of
high production quality films based on the works of Shakespeare and Jane Austen,
satires like Rosencrantz and Guildenstern are Dead, and even literary classics like James
Joyces Ulysses. Denis S. Karjala, The Term of Copyright, Growing Pains: Adapting Copyright
for Education and Society 7 (1997). See generally also Recent Derivative Works Based
on Frances Hodgson Burnett's Classic The Secret Garden (1911) at http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/publicdomain/SecretGardenDWs.html; Wind Done
Gone Suit Settles, Washington Post, May 9, 2001 at http://www.washingtonpost.com/wp-dyn/articles/A63137-2002May9.html; Gregory Maguire, Wicked:
The Life and Times of the Wicked Witch of the West (1996); Gregory
Maguire, Confessions of an Ugly Stepsister (2000); Anne Of Green Gables - The
Continuing Story at http://www.anne3.com; Verena Dobnik, Lolita causes a different kind of controversy,
Associated Press, October 10, 1998 at http://www.boston.com/news/daily/10/lolita.htm; Siva Vaidhyanathan, Copyrights and Copywrongs: The
Rise of Intellectual Property and How It Threatens Creativity (2001).
FN 48 For example, under the 1909 copyright Act, a child who grew up
reading depression-era literature
from the 1930s could expect to write an adaptation of these works by 1970 after the 28 year initial term or by 1990 if the owner had renewed for the 56 year term. Under the CTEA, however, no such adaptation could be written until at least the later 2020s, close to 100 years later.
FN 49See Redefining Film Preservation, supra note § 3, ¶ 3.
FN 50 Notes from Interview with Brewster Kahle, Founder, Internet Archive. (on file with
FN 51 The cost estimates for maintaining a digital book range from Michael Lesks low
of $4 to the National Archives and Records Administration (NARA) estimate of $13.99
to Yale Universitys estimate of $15.37 to the EPAs estimate of $250 per
book. See Anne R. Kenney, Digital to Microfilm Conversion: A Demonstration Project, Final
Report to the National Endowment for the Humanities, Tbl 6, at http://www.library.cornell.edu/preservation/publications.html
FN 52 For example, the Bibliotheca Alexandrias Digital Manuscripts Library digitizes manuscripts and rare
books and makes them available on CDs. See, http://www.archive.org/news/bibalex_p_r.html
FN 53 For example, the Telecommunications Act of 1996, created the Universal Service Fund for
Schools and Libraries (commonly known as the "E-Rate" program), which provides discounts on
the cost of telecommunications services, including Internet access and equipment, to all public
and private schools and libraries. See Telecommunications Act of 1996, Pub. L. No.
104-104, § 110 Stat. 56 (1996).
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