"The Congress shall have power ... to promote the progress of ... useful arts, by securing for limited times to authors ... the exclusive right to their respective writings." This, taken from Article II Section 8 of the Constitution, which is the section granting Congress its power. This particular clause, known as the "progress clause," is the basis for copyrights and patents in the United States. The "limited times" part of the clause was tested in the case of Eldred v Ashcroft, and the Supreme Court decided that since the copyright term did have a definite limit, the 1998 Copyright Term Extension Act (or CTEA, which extended all copyrights by an additional 20 years) did not violate the "limited times" provision of the clause.
A new case is challenging the CTEA and the Berne Convention Implementation Act (BCIA) on the grounds that the CTEA and BCIA are unconstitutional in that they do not promote progress and that they form an effectively perpetual term for works created between January 1, 1964 and January 1, 1978.
The scope of copyright first changed dramatically in 1976, when the Copyright Act removed the requirement of registering a work with the Library of Congress, depositing a copy of the work with the Library and renewal for a full term, for works created on or after January 1, 1978. The BCIA was passed in 1992, and it automatically renewed all copyrights on works created between January 1, 1964 and December 31, 1977. Finally, in 1998, the CTEA extended all copyrights, including those extended by the BCIA, by an additional 20 years.
When there was still a requirement for copyright protection to be renewed, less than a one-fourth all copyrighted works had their protection renewed. The annual renewal rate averaged between 8% and 15%. It is on these grounds that Brewster Kahle and Richard Prelinger have filed suit to have the BCIA and CTEA ruled unconstitutional as they apply to such works. The case, Kahle v Ashcroft, also seeks to prevent criminal enforcement of the No Electronic Theft Act from being applied to those works.
Kahle and Premlinger each run archives, with Kahle being the founder of Internet Archive (http://www.archive.org) and Premlinger being the founder of Premlinger Associates Inc. (known as Premlinger Archives). These collections seek to keep copies of old public domain images, books and videos, among other works. Kahle and Premlinger allege that a majority of the works between 1964 and 1977 would not have been renewed, and therefore would have fallen in to the public domain, were it not for an automatic renewal and an across-the-board copyright term extension. It is these 'abandoned works,' books, movies, songs and pictures whose authors no longer have any interest in them, works that are no longer available and for which there's no compelling reason to rerelease, that the lawsuit seeks to let into the public domain.
To some, the case may appear to be very similar to Eldred v Ashcroft. In some respects, this is true; both cases deal with the effect of copyright term extension, but they do so in different manners. In rejecting the arguments put forth by the plaintiffs in Eldred, the Supreme Court stated "when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." The argument being advanced in Kahle is that in changing from a registration and renewal copyright system (a 'conditional' copyright regime) to one where simple publication of a work grants copyright protection (an 'unconditional' copyright regime), Congress did indeed alter the traditional contours of copyright.
As with the Eldred case, and the ongoing Golan v Ashcroft case (challenging Congress' ability to reclassify public domain works as copyrighted), the legal challenges to Congress' ability to dramatically alter the copyright landscape are adding up, and it may be the case that we can once again have a 'free culture,' where those works whose owners are no longer making money off them are available to the public, for archiving and for the betterment of culture.