The 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, and scholars
to historical collections in digital format. Founded in 1996 and located in the
Presidio of San Francisco, California, the Archive receives data donations from a multitude
of resources, including libraries, educational institutions, and private companies.
Libraries exist to preserve and provide access to society’s cultural artifacts. To continue to foster education and scholarship in this era of digital technology, libraries must extend into the digital world. Libraries depend heavily on public domain materials to serve their mission of preservation and access. The Sony Bono Copyright Term Extension Act of 1998 (“CTEA”) [FN 3] frustrates the Archive’s goals of preservation and universal access thereby denying the public its rightful access to public domain works. The Archive submits this brief to increase the Courts understanding of the true cost of the CTEA to our cultural heritage.
With digital technology, however, this argument can no longer stand. Indeed, even Valenti
now agrees that digital technology possesses the capacity to makes flawless copies trivial
and worldwide distribution instantaneous.
[FN 4] This ease of publishing and distributing means that material
in the public domain is universally available. The public domain has assumed a
central role in education in this country and around the world. Projects to
digitize and give away millions of out-of-copyright books, movies, and music are now
underway, funded by foundations, the government, and indeed corporations.
[FN 5] Yet the projects are
directly confronting the largest barrier to making our cultural heritage available to all
– the repeated extension of copyright terms at the expense of the public domain.
The
Eldred decision comes at a critical time for our culture and its
artifacts. For the second time in history the collection of all recorded information
is within our grasp.
[FN 6] Digital technology allows us the opportunity to build a
“universal” library that dwarfs the collections of the Alexandria Library 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
words, films, and music recordings with ease. At the same time digitization will
greatly reduce the cost of preserving our cultural history and eliminate deterioration caused
regularly through 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 a half-kept promise—the distant, the deaf, and
the blind. A universally accessible archive of print, audio, and visual materials is
within our grasp.
In passing the CTEA, Congress deprives the public of this universally accessible library.
Because the exclusive rights of copyright holders today include the rights to reproduce,
distribute, perform, or display the copyrighted work or derivative works, providing access to
a copyrighted work by posting it on the Internet invites accusations of copyright
infringement. 17 U.S.C. § 501
et seq. Therefore, it is only works that have
clearly fallen into the public domain that can safely be added to this
universally accessible library. If the CTEA stands, it will prevent books, films, and
other copyrighted works on the verge of entering the public domain from being
successfully preserved in digital form, thereby denying the public this rich and fertile
collection of our past.
In the sections that follow, we describe four specific areas where digital archives
can revolutionize learning and creativity – greater access, preservation, economy, and extension of works
– and demonstrate how the CTEA frustrates each to the detriment of the public
interest. 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 and may ultimately prove more important
to our nation’s progress than access to copyrighted works during their limited term.
Should this Court permit the D.C. Circuit’s decision to stand, it will be
turning its back on the intent of the Framers and this Court’s consistent
statements that copyright serves public as well as private purposes.
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 Publ’ns v. Rural Tel. Ser.
Co., 499 U.S. 340 (1991); Graham v. John Deere & Co., 383 U.S.
1 (1966). 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 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) (subsequently codified at 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. This last right guarantees that
copyrights will eventually expire, and that the public will ultimately receive the right
to use all works.
A healthy public domain is essential to a healthy intellectual property regime. In
Harper & Row, this Court stated that “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, the promotion of public disclosure of information is equally as important
in intellectual property policy as incentives for creation. 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 public’s 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 Congress’s 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 authors.”). Moreover,
as new mediums of expression arrive and the number of works produced increases,
promoting public use and access to works becomes increasingly important. Sony, 464 U.S.
at 443 n. 23 (“[S]ince copyright protection is not perpetual, the number of
audiovisual works in the public domain necessarily increases each year.”).
II. The CTEA Prevents Works That Have Reached The End Of Their Proper Copyright
Term From Entering The Public Domain
The CTEA single-handedly deprives our schools, libraries, and children of enjoying almost any
benefit that digital archives have to offer. Because of both the retroactive and
prospective extensions of copyright in the CTEA, a robust public domain remains outside
of our grasp.
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: intellectual
property concerns. Panel on Digital Libraries, President’s Information Technology Advisory Committee (“PITAC”), Digital
Libraries: Universal Access to Human Knowledge 21 (2001), available at
; Michael Lesk,
Practical Digital Libraries 223 (1997) (“Issues related to intellectual property law are the
most serious problems facing digital libraries.”). Until works reach the end of their
term, it is simply impossible for librarians and archivists to seek rights from
millions of copyright owners and prepare the works for preservation and access. The
future of digital archives depends on a predictable and reasonable limit to copyright
terms. Without “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.
[FN 7] In 2001,
all but 174 of these titles are out of print.
[FN 8] While a copy
or two may exist in a library or a used bookstore, the copyright
holders are not making 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. But for the CTEA, they
would now be available to hundreds and thousands of schools, researchers, and families.
But for the CTEA, they would now be at the fingertips of new
authors and artists, available to assist in forging the next generation of great
literary works. Yet because the CTEA still stands, we must continue to wait,
perhaps eternally, while works disappear and opportunities vanish.
With digital archiving, the public would stand a far better chance of accessing
these “rare” books than works still under copyright but no longer made available
by the copyright holder. For example, the Frank Capra movie, “It’s a Wonderful
Life” lay gathering dust in a movie studio until in the early 1970’s
when it fell out of copyright and was quickly aired by Public Broadcast
Stations. It quickly became a Christmas tradition on many stations and for many
families.
[FN 9] But for its fall into the public domain this classic film would
not have reemerged in the 1970s. Indeed, under the CTEA no one with
an interest in showing the film would have been able to do so
until 2041.
On its face, the CTEA merely extends the copyright term by 20 years.
However, the central issue here is not simply the additional 20 years; it
is the congressional policy of perpetual copyright. Congress has already extended the term
of copyright
eleven times in the 20th Century alone. Lawrence Lessig, The Future
of Ideas: The Fate of the Commons in a Connected World 197 (2001).
There is no reason to believe this time will be the last. Rather,
it is far more likely that Congress will be pressured in 2018 to
add still more term to works whose copyrights would otherwise expire.
The public domain is an essential component of the copyright jurisprudence of this
Court and the lower courts. However, in
Eldred v. Reno, 239 F.3d 372
(D.C. 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. 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 – a field forever tilled but never sown.
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. This Court must require Congress
to respect the limitations of “promoting” and “limited times” or the public will
never experience the value that digital archiving offers.
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, today’s collections can be digitally stored, accessed
and distributed. This new global decentralized platform revolutionizes access and use of public
domain works.
A. Digital Archives Allow Us To Preserve Our Cultural Heritage
1. Copyright Owners Fail To Preserve The Vast Majority Of Creative Works For Public
Access
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 10] For example, Amazon.com, the world’s
largest online seller of books, lists only 2.5 million titles total in its
online catalogue.
[FN 11] 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 world’s published works over the last 200 years.
[FN 12]
Every year, thousands of books, movies and sound recordings also move out of
circulation and only a small number are preserved in libraries and private collections.
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. James H. Billington, Librarian
of Congress in 1994, stated:
Of America's feature films of the 1920s fewer than 20% survive; and for
the 1910s, the survival rate falls to half that. But what is even
more alarming is that motion pictures, both old and new, face inevitable destruction--old
films from nitrate deterioration and newer films from color fading and the “vinegar
syndrome.” Only by storing films in low-temperature and low-humidity environments can nature's decay
processes be slowed. The majority of American films, from newsreels to avant-garde works,
do not receive this type of care and are in critical need of
preservation.
[FN 13]
Even if a work, after a lengthy but presumably finite term, enters the
public domain, the public may never enjoy it if few or no physical
copies remain.
Like the D.C. Circuit, the Archive believes that “preserving access to works that
would otherwise disappear . . . ‘promotes Progress’.”
Eldred, 239 F.3d at 380.
But the data rather starkly demonstrate that copyright holders lack an adequate incentive
to preserve works. 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 the pre-CTEA copyright term expires, few books, movies, or music are still
being published for profit. Most copyright owners let their works fall out of
print, letting them languish in literary limbo.
[FN 14] Moreover, many owners of works from
95 years ago cannot easily be found, especially when the license is for
small or non-profit projects.
The benefits of our entire cultural heritage are forestalled while 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 delay – it is abandonment. For works recorded on
film and other less stable mediums, for example, the CTEA extension threatens to
lock them up past the time when they can be truly preserved. If
the CTEA stands, the public’s share of the copyright bargain, in many instances,
will 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 libraries and
archives can save these works for future generation’s attention and adoration.
2. Digital Archives Preserve Copyrighted Works and Prevent Their Permanent Loss
Digital archives offer a solution to the problem of preservation.
[FN 15] Films, books, and
sound recordings that enter the public domain can be archived quickly, efficiently and
cost-effectively via digitization so that no further deterioration or loss will ever occur
.
Digitizing a film, a book, or a sound recording makes a perfect copy
of the work and saves that copy on a computer-compatible medium, such as
a hard drive or a CD-ROM. Once the first copy is made, further
copies can be rendered as backups in order to prevent loss or accidental
destruction. These copies can exist in multiple locations 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 16] Only a tiny percentage (0.003) of this creativity takes the
form of a printed page.
[FN 17] The vast majority of this information takes the
form of sound, images, and numeric data.
[FN 18] 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 throughout history have 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 armed with
new technology stand ready to preserve them
all.
B. Digital Archives Promote Full Public Access To Our Cultural Heritage
Digital archives hold out the promise of universal access to our cultural heritage.
Today’s 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
humanity’s cultural artifacts
[FN 19] and primarily serves its proximate community. In contrast, the Internet
– the 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. Internet-based digital archives are
the true embodiment of the public domain.
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) (finding of fact
#34), 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.
As mentioned above, millions of copyrighted works are created every year, yet, after
75 years, few remain in circulation. Most books are out-of-print; many movie reels
and recordings are lost or damaged.
[FN 20] Yet, even where archives store the few
remaining physical copies of works, they provide only limited access: limited by geography,
time, and form. Only a small minority of the public has the time
and resources to access the bulk of our cultural heritage. 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.
For example, Prelinger Archives in New York and San Francisco maintains over 48,000
ephemeral films relating to American life, culture, and industry, many of which have
important historical and cultural value. The public can access this physical archive, but
only through two very limited means: (1) designated representatives for stock footage licensing,
i.e. Archive Films and Getty Images and (2) “access events” such as academic
and scholarly screenings, research visits to the archives and the provision of videotape
copies. Every time a physical copy of a film is viewed, the quality
of its print suffers slightly. Thus, while Prelinger Archives serves as a fine
example of physical preservation, its fixed locations and limits on simultaneous use of
films impede full public access. And the analog nature of the film means
that what public access can occur slowly consumes the very film that is
being viewed.
Digital archiving, on the other hand, eliminates many of these barriers and makes
our vast resources available to almost anyone who wishes to use them.
[FN 21] Information
on the Internet while frequently stored in one geographic location is readily accessible
to individual regardless of their location, or the hour of the day.
The power of digital archives is demonstrable. The Archive recently borrowed 1,001 key
public domain archival films from Prelinger, films that were found to be most
in demand, plus unknown films that experience suggested people would want to work
with and see. These films were transferred to videotape and then digitized so
they could be stored and served online at
. In September and October
2001 alone, these movie files were downloaded over 1 million times from moviearchive.org,
with many of these downloads performed by users from educational institutions 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 Prelinger’s designated representatives
and held approximately 200 physical access events. In other words, by removing the
barriers of time and distance digital access allowed the public to view Prelinger’s
films over 2,700 times more often than physical access.
Digital archives can bring the public domain into schools, libraries, and homes across
the globe. Indeed, for most works, it is only digital archives that can
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 collection, transition to digital format brought not only quantitative, but
also qualitative changes in patron access. The Director of Prelinger Archives stated that
the dramatic increase in access through moviearchive.org represents many different kinds of access,
many of which were previously impossible. Such accesses include public screenings, classroom screenings,
individual scholarly research projects, and low-budget productions.
[FN 22] Very few if any of these
users would have been able to access the archives previously, according to Prelinger.
Digital archives offer academics and cultural inquisitors more than simple access to previously
unavailable works; they also offer the opportunity to exploit highly efficient and productive
search tools. For example, 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. These include the largest map, film and television collections in the
world. It would take days if not weeks for most people to physically
search through even the index to its collection, assuming one was able to
make the trip to our nation’s capital. Yet, now, with access to a
computer, web browser, and the Internet, one can simply go to www.loc.gov and
search their catalogue within minutes.
Yet often searching the LOC catalogue is insufficient. Many answers within an item
lie beyond its title, author or abstract, especially for media other than books.
Imagine, however, if one could 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 one’s home, school, or office computer. Such technologies
are either currently available or quickly developing. For example, products such as Adobe
Acrobat have the capacity to perform Optical Character Recognition (“OCR”), a process by
which the program will take a digitized document, identify every word on each
page of the document, and then allow the user to search the pages
of the document for each and every occurrence of a word requested.
[FN 23]
Imagine now if 100 libraries around the country had a collection of a
similar size to that of the LOC. Imagine that any child, student, philosopher,
reporter, or scholar could simply go to any one of these 100 sites
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 fly—into a format that meets their needs. Further,
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. Where
technology and imagination lead us the CTEA forbids us to go. For our
children, high quality access to digital information demands a robust public domain.
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. The ability to digitize vastly increases the capacity to
incorporate our history and culture into new works.
Having access to digital copies of works allows new authors to maximize and
extend the value of preserving our past publications. Unlike physical media, digital media
allows 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 the present-today popular consciousness.
[FN 24]
This ability is made more important – and more powerful—as audio and visual recordings
flourish. One can allude to or reference a printed work by quoting a
short passage or citing to 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 one’s own work. A slideshow cannot “cite” or “quote” a
photo from a rally; a song cannot “cite” or “quote” a speech by
a political candidate. Digital archives allow written, audio and visual works to be
easily sampled and “cited.”
Recently, the Archive held a filmmaking contest.
[FN 25] 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 Archive stored at moviearchive.org. The submissions each
incorporated a powerful message about war and our society. These new creative works
were built exclusively through the use and reuse of public domain digitized film.
[FN 26]
Submissions came in from 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 without the advent of digital film archiving.
E.
Digital Archives Make Preservation and Access More Economical
Digital archiving is not free. Nor is it even inexpensive. Yet because we
only need 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 27] By
contrast, the entire cost of digitizing a film is $200 per hour of
footage.
[FN 28] It is a single fee, 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 29] 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.
But the return on digital archiving is higher still. Federal and state governments
continue to spend taxpayer funds to “wire” our schools, libraries, and community centers—to
connect them to the Internet.
[FN 30] 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
to? 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
the public’s treasures 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 empty shelves.
IV. Conclusion
Digital archives constitute the difference between a nominal public domain and a real,
robust public domain. Their creation depends on “limited times.” 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.
Amicus Internet Archive respectfully requests this Court to grant certiorari in this case
and thereafter enforce the public’s right to preserve 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.
Mark Lemley
Counsel of Record
Boalt Hall School of Law
Deirdre K. Mulligan,
Samuelson Law, Technology and Public Policy Clinic
Boalt Hall School of Law
Jason Schultz
Fish & Richardson, P.C.
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. The Samuelson Law, Technology, and Public Policy
Clinic at Boalt Hall School of Law at the University of California at
Berkeley prepared this brief. Professor Lemley contributed to this brief in his personal
capacity, and its contents should not be attributed to his employers. The Clinic
is thankful for the help and guidance of Michael Levy Manager, Law Library
Computing and Lecturer in Law and Kathleen Vanden Heuvel Deputy Director, Law Library
and Lecturer in Law
FN 2 For more information on the Internet Archive,
see http://www.archive.org/about/index.html
FN 3
Copyright Term Extension Act of 1998 (CTEA), Pub. L. No. 105-298, 112
Stat. 2827.
FN 4 “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),
available at http://www.mpaa.org/jack/99/99_10_28a.htm.
FN 5
Raj Reddy,
Infinite Memory and Bandwidth: Implications for Universal Access to Information
(April 6, 2001) available at http://www.cc.gatech.edu/external.affairs/anniversary/rajreddy.ppt.
FN 6
Luciano Canfora, The Vanished Library (1990) (discussing the history and politics of
the great Greek Library of Alexandria); Brewster Kahle, Rick Prelinger, and Mary E.
Jackson, Public Access to Digital Material, 7 D-Lib Magazine (October 2001), available at
http://www.dlib.org/dlib/october01/kahle/10kahle.html.
FN 7
American Library Annual and Book Trade Almanac for 1872-1957 (“ALMANAC”).
FN 8
Books in Print Online (“BIP”), available at http://www.bowker.com.
FN 9
Roger Ebert,
It’s A Wonderful Life, The chicago sun-times,
available at http:www.suntimes.com/ebert/greatmovies/wonderful_life.html
FN 10
For example, in 1910, 13,470 books were published in the United States.
ALMANAC. In 2001, only 180 of these titles are available for purchase from
any publisher worldwide. BIP. 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 11
Paul Chan,
Amazon Rebounds on Holiday Cheer But Skeptics Abound, Singapore Business
Times, December 3, 2001 at SS2.
FN 12
U.S. Department of Education. National Center for Education Statistics. Academic Libraries in
the United States: Fiscal Year 1998, NCES 2001-341, by Margaret W. Cahalan, Natalie
M. Justh, Mathematica Policy Research, Inc. and Jeffrey W. Williams, Project Officer, National
Center for Education Statistics, Washington, D.C.: 2001. Table 5A. (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, Total number of audio-visual materials-units: 92,305,707).
FN 13 Redefining Film Preservation: A National Plan Recommendations of the Librarian of Congress
in consultation with the National Film Preservation Board, Library of Congress Washington, D.C.
(August 1994),
available at http://www.loc.gov/film/plan.html.
FN 14
It is worthy of 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 public domain.
FN 15 Amicus Archive strongly believes that to the extent possible, works should be
preserved in both physical and digital forms.
FN 16 Peter Lyman, Peter and Hal R. Varian,
How Much Information, Executive Summary
(2000), available at http://www.sims.berkeley.edu/how-much-info.
FN 17
Id.
FN 18
Id.
FN 19
United States public libraries contain approximately 784,562,000 volumes. Department of Education. National
Center for Education Statistics.
Public Libraries in the United States: Fiscal Year 1998,
NCES 2001-307, by Adrienne Chute, Elain Kroe, National Center for Education Statistics, Washington,
D.C. 2001. Table 7.
FN 20
Supra, notes 7-13 and accompanying text. See also Redefining Film Preservation, supra
(“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 21
Panel on Digital Libraries, President’s Information Technology Advisory Committee (“PITAC”), Digital Libraries:
Universal Access to Human Knowledge 21 (2001) page 2, available at
FN 22
Issues of accessibility are particularly important in education. Students, researchers, and teachers are
constantly looking for material to use in their presentations, projects, and assignments. Where
better to turn then a well-organized digital archive of works that represent our
history? The older the work, the more valuable an educational tool it is.
Consider, for example, the works of Shakespeare. Any copyright on his works would
have long passed; now they are among the most abundant sources of inspiration
and insight in modern education (next to the Bible, another work that has
been rescued and preserved within the public domain).
FN 23 For more information on OCR Technology,
see http://www.adobe.com/products/acrcapture/fullfeature.html.
FN 24
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,
2001.
FN 25
http://ftp.archive.org/html/contest01/contest.htm
FN 26 To view the winning film as well as the other submissions,
see
http://ftp.archive.org/html/contest01/gallery.htm
FN 27
http://www.loc.gov/film/plan.html, § 3, ¶ 3.
FN 28 Experience of Internet Archive, interview with Brewster Kahle.
FN 29 The cost estimates for maintaining a digital book range from Michael Lesk’s low
of $4 to the National Archives and Records Administration (NARA) estimate of $13.99
to Yale University’s estimate of $15.37 to the EPA’s estimate of $250 per
book.
See Digital to Microfilm Conversion, Table 6: Estimates for Archiving a Digital
Book for 10 years, available at http://www.library.cornell.edu/preservation/publications.html.
FN 30
For example, the Universal Service Fund for Schools and Libraries-commonly known as
the "E-Rate" program created in 1996 as part of Public Law 104-104, the
Telecommunications Act of 1996, provides discounts on the cost of telecommunications services, including
Internet access, and equipment to all public and private schools and libraries.