Opting out of copyright.

In Kahle v. Gonzalez, the head of the Internet Archive Brewster Kahle challenged the change of the copyright system from opt-in to opt-out, stating that this change was unconstitutional. Kahle also believed that this change prevented librarians from having digital materials on their shelves, particularly with respect to orphan works. The Ninth Circuit court of appeals disagreed, decided that this case was not very different from Eldred v. Ashcroft, and affirmed the lower court’s decision for Gonzalez. I’ll respectfully disagree slightly with a Scrivener’s Error post from January 22nd, in which the author argues that the opt-in/opt-out terminology is inept.

I agree that once a work is created and fixed that it is in copyright, period. I also agree that the GNU License, Creative Commons License, etc., are basically covenants not to sue rather than opt-out mechanisms, with one caveat- the most popular versions of those licenses meet that description, but there is a Creative Commons Public Domain Dedication. However, the fact that these licenses aren’t mechanisms to opt-out does not mean that the system itself hasn’t changed to an opt-out system, particularly from the perspective of users of copyrighted materials. Even though a copyright holder must opt in for legal remedies, the work itself is now in copyright as soon as it is created. That automatic existence of copyright requires creators to opt out of the copyright system if they want their work in the public domain, rather than opting in to the copyright system by registration.

Of couse, I guess overall I agree that the terminology could be clearer, so maybe I’m not disagreeing that much.

Leave a Comment