Newsmaker: Fighting to protect copyright 'orphans'

newsmaker An effort among Internet activists to halt the extension of copyright protections for orphan works--out-of-print books and media--was dealt a setback last week by a U.S. appeals court decision.

The case, Kahle v. Gonzales, was filed in 2004 by, among others, Internet Archive co-founder and director Brewster Kahle. Plaintiffs argued that extending such copyrights harmed the public's ability to access orphan works. The Internet Archive has been joined by companies like Google, Yahoo and Microsoft in attempting to gain public domain status for these works.

But a U.S. district court had already rejected the lawsuit, and last week, the Ninth Circuit U.S. Court of Appeals upheld the lower court's decision, saying that plaintiffs' arguments were essentially the same as those rebuffed by the U.S. Supreme Court in 2003 in Eldred v. Ashcroft, which affirmed the constitutionality of new copyright laws expanding the protections for orphaned works.

For Kahle, the ruling was a blow to his goal of preserving as many forms of media as possible for posterity. But he hardly views the result as a final defeat.

Still, Kahle and the Internet Archive are also gaining momentum, and recently received a $1 million grant from the Sloan Foundation for the scanning of public domain works.

Recently, Kahle visited CNET's Second Life auditorum for a discussion in front of an eager audience about the case, as well as about the Internet Archive, Nicholas Negroponte's $100 laptop project and other issues.

Q: Please explain the mission of the Internet Archive.

Kahle: We're out to help build the Library of Alexandria version 2, starting with humankind's published works, books, music, video, Web pages, software, and make it available to everyone anywhere at anytime, and forever. We started archiving the Web in 1996 with snapshots every two months of all publicly accessible Web pages. The "Wayback Machine" is now about 85 billion pages and 1.5 petabytes. Then we moved on to books, music and video. We work with great lawyers, the U.S. Copyright office, the Library of Congress and the American Library Association. We have 30,000 movies, 100,000 audio recordings and now we're digitizing books.

How do you deal with the copyright issues?

Kahle: For the Web, we followed the structure of the search engines and the opt-out system for doing the first-level archiving. If folks write to us not wanting to be archived, then we take them out. For music, we offered free unlimited storage and bandwidth, forever, for the recording of "trader friendly" bands in the tradition of the Grateful Dead.

We now have over 2,000 bands and 36,000 concerts. With packaged software, our lawyers told us that digital rights management (DRM) would pose a problem under the Digital Millennium Copyright Act (DMCA), so we got an exemption from the copyright office allowing us to rip software and break the copy protection for archival purposes. With books, we are starting with out-of-copyright (works) and wanting to move to orphan works, then out-of-print works, then finally in-print (works). We digitize 12,000 books a month and have 100,000 on the site now for free use and download. But we just had a setback. Larry Lessig brought a suit on our behalf, Kahle v. Gonzales, to allow orphan works to be on digital library shelves. But the 9th Circuit U.S. Court of Appeals just rejected it.

We digitize 12,000 books a month and have 100,000 on the site now for free use and download.

Can you talk more about Kahle v. Gonzalez?

Kahle: Fundamentally, this is an issue for the Supreme Court and the Congress. What kind of world do we want in the digital era? Do we want to have libraries like we grew up with, ones with old and new books available to those that go to the library? Or do we only want what corporations are currently peddling? Of course people want the library, but how do we do that in such a way it does not sink an industry? Libraries worked because they were a pain to go to. So instead of frequently going to a library for new books, people went to book stores. Also, libraries spend $3 to $4 billion each year on publishers' products. So how do we build a digital environment and ecology that allows new works to get created and paid for, preserve them long-term, provide access to the underprivileged, provide a different kind of access for scholarship and journalism and all in the new world. It is not simple. But it is important.

Talk about book-scanning projects currently going on.

Kahle: There are a couple of major scanning projects in this country: Google is leading one, and a large group of libraries and archives are working together on another. Also, there's the Open Content Alliance, which is attempting to keep the public domain public domain, so if a book passes into the public domain, the digital version is not locked up again as a copyrighted work. There are other projects that are putting perpetual restrictions on what can be done with digitized public domain works.

That's a bit scary from my point of view. We need help keeping the libraries open and unencumbered by new restrictions on public domain works. We have been able to scan books for a total cost of 10 cents a page, so about $30 a book. And what we really need is more folks to want this done or want to scan themselves.

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