Fighting to protect copyright 'orphans'

Internet Archive's Brewster Kahle is attempting to gain public domain status for out-of-print books despite court setbacks.

Daniel Terdiman Former Senior Writer / News
Daniel Terdiman is a senior writer at CNET News covering Twitter, Net culture, and everything in between.
Daniel Terdiman
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.

Who are the natural "enemies" of the Internet Archive?
Kahle: Everyone seems to like the idea of preservation of cultural materials. But folks are nervous about disruptions in commercial practices that are just now getting formed. Libraries and publishing, however, have always existed in parallel. What happened is that some overzealous copyright laws got passed with heavy lobbying from folks like Disney and these are screwing things up. I think of it as collateral damage. Instead of keeping just Mickey Mouse or just the profitable works under copyright for longer, they fundamentally changed the structure of copyright. So the problem we find mostly is not that we are stepping on toes, it's that we run the risk of stepping on a legal landmine from a previous war. You have one of the first $100 laptops. What is your take on that project?

When I got to hold the $100 laptop in my hand, I had one of those experiences that does not happen very often: This is important. The organization is nonprofit, the goal is great, and it has to be open to succeed. It is bottom-up, built for Linux and openness. We are a library for the machine, so we hope to have millions of new users in the coming year. I am very interested in the rise of the technical nonprofits. There are very interesting things happening there, where the new products out of big companies are getting more locked down and closed all the time.

How is the Wayback Machine distributed around the world?

Kahle: We have our servers in San Francisco. What happens to libraries is they are burned, and they are usually burned by governments. So we are working to build an "international library system" of a few great libraries that have exchange agreements. Our first was the library of Alexandria in Egypt, and they got a full copy of what we have and vice versa. They are scanning Arabic books. We are just starting to work with the European Archive in Amsterdam. They have a partial mirror and are looking for funding and help. It is an exciting time and scary time. Hard drives fail all the time, people screw up and governments make bad calls.

What happened is that some overzealous copyright laws got passed with heavy lobbying from folks like Disney and these are screwing things up. I think of it as collateral damage.
Rik Riel (from the audience) asks: What's your opinion on the potential threats of ISPs throttling certain content (i.e. violating Net neutrality)?

Kahle: It is a huge and important issue. A way to frame it is that in the '80s, the battle was over the "transport layer." Basically ArpaNet/Internet vs. the phone companies. We, in the open world, made huge wins, companies prospered and all sorts of things went great. The battle in the '90s was at the software level: browsers, protocols, etc. Basically it was the open world of the Web vs. the closed worlds of AOL and Lexis/Nexis. Again, we made huge wins there. Yes, the dominant browser was closed source, but it talked the open protocols. And the great progress of Firefox, Linux and Ubuntu give reason for hope at that layer.

The 2000s is the battle at the content layer: open or closed. iTunes is a loser in this view. DRM, central control, etc. Google's restrictions on the books they are scanning is a loss on this front. So we need real help to build an open content layer that is not centrally controlled. Wikipedia is a great example of a win. But now we are seeing new attacks on fronts we thought we won--most particularly the transport layer. The phone companies have all gotten back together again to make their monopoly. In the ultimate thumbing of the nose they are calling it AT&T. And they are at their old tactics again. So we have to fight like nuts to keep the transport open, the software open and the content open. It is good for the public and it is good for businesses. It is just not good for monopolies, and that is a good thing in most people's views.

AlexisJ Onmura (from the audience) asks: Which new technology--if the Internet Archive had the opportunity to try--do you think can do what stone has done for ancient civilizations in terms of longtime storage?

Kahle: You can make a durable printout on something like stone and the like, but I would like to argue for something else. If you look at the world as a whole since writing started in Sumeria, there has been an up-and-running civilization somewhere. So I believe we can have long term storage and access--which is key--by building a set of International Libraries in different jurisdictions that have active trade agreements. When one melts down, then when they come back up, the others can and are motivated to rebuild it. If this were in place, I could sleep.