The U.S. Court of Appeals for the Ninth Circuit has denied an appeal of Kahle v. Gonzales, leaving the legal status of orphan works unchanged. The plaintiffs’ attorneys were Jennifer Stisa Granick, Lawrence Lessig, and Christopher Sprigman.
Eric Auchard’s article "U.S. Court Upholds Copyright Law on ‘Orphan Works’" gives an overview of the Ninth’s decision.
The opinion is also available. Here is an excerpt:
Plaintiffs appeal from the district court’s dismissal of their complaint. They allege that the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright and therefore requires First Amendment review under Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). They also allege that the current copyright term violates the Copyright Clause’s "limited Times" prescription. . . .
Arguments similar to Plaintiffs’ were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. The Supreme Court has already effectively addressed and denied Plaintiffs’ arguments. . . .
In March 2004, Plaintiffs Brewster Kahle, Internet Archive, Richard Prelinger, and Prelinger Associates, Inc. filed an amended complaint seeking declaratory judgment and injunctive relief. Brewster Kahle and Internet Archive have built an "Internet library" that offers free access to digitized audio, books, films, websites, and software. Richard Prelinger and Prelinger Associates make digital versions of "ephemeral" films available for free on the internet. Each Plaintiff provides, or intends to provide, access to works that allegedly have little or no commercial value but remain under copyright protection. The difficulty and expense of obtaining permission to place those works on the Internet is overwhelming; ownership of these "orphan" works is often difficult, and sometimes impossible, to ascertain. . . .
Plaintiffs also argue that they should be allowed to present evidence that the present copyright term violates the Copyright Clause’s "limited Times" prescription as the Framers would have understood it. That claim was not directly at issue in Eldred, though Justice Breyer discussed it extensively in his dissent. See Eldred, 537 U.S. at 243. Plaintiffs assert all existing copyrights are effectively perpetual. . . .
Both of Plaintiffs’ main claims attempt to tangentially relitigate Eldred. However, they provide no compelling reason why we should depart from a recent Supreme Court decision.