EFF: Civil Complaint 3-22-04

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Jennifer Stisa Granick, State Bar No. 168423 Lawrence Lessig Christopher Sprigman CENTER FOR INTERNET & SOCIETY CYBERLAW CLINIC Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorneys for Plaintiffs BREWSTER KAHLE, INTERNET ARCHIVE, RICHARD PRELINGER AND PRELINGER ASSOCIATES , INC. IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BREWSTER KAHLE, 16 INTERNET ARCH
    CIVIL COMPLAINT FOR DECLARATORY JUDGMENT 12345678910111213141516171819202122232425262728 Jennifer Stisa Granick, State Bar No. 168423Lawrence LessigChristopher SprigmanCENTER FOR INTERNET & SOCIETYCYBERLAW CLINICCrown Quadrangle559 Nathan Abbott WayStanford, California 94305-8610Telephone: (650) 724-0014Facsimile: (650) 723-4426  Attorneys for Plaintiffs B REWSTER K AHLE , I NTERNET A RCHIVE ,R ICHARD P RELINGER AND P RELINGER A SSOCIATES , I NC .   IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIABREWSTER KAHLE,INTERNET ARCHIVE,RICHARD PRELINGER,and PRELINGER ASSOCIATES, INC.,Plaintiffs,v.JOHN ASHCROFT, in his official capacity asAttorney General of the United States,Defendant.)))))))))))))))))))))))Civil Case No. _________________ CIVIL COMPLAINT FORDECLARATORY JUDGMENT    CIVIL COMPLAINT FOR DECLARATORY JUDGMENT -1- 12345678910111213141516171819202122232425262728 COMPLAINT This case is an action for declaratory relief pursuant to 28 U.S.C. § 2201. It arises from theconflict between two fundamental changes that have affected the ability of individuals to cultivate andspread culture. One change is technological; the other is legal.The technological change is the birth and spread of the Internet. The Internet has created anextraordinary opportunity for individuals, including Plaintiffs, to cultivate and spread our culture. Nosingle technological change in the history of the American Republic has more profoundly affected thepotential for democratic speech and the spread of knowledge.The legal change is the radical shift in the nature and extent of copyright regulation. For almost190 years of the American Republic, copyright law was purposefully tailored to regulate extremelynarrowly. Given the nature of creative production, and the limits to the law, copyright burdenedrelatively few — especially few beyond commercial creators. The law thus left essentially unburdenedarchivists, preservationists, libraries, and non-commercial creators.This traditional pattern has now changed. Whereas copyright regulation before was theexception, it is now the rule. Whereas the burden of copyright before was effectively limited to worksthat had continuing commercial viability, the burden of copyright now is spread broadly andindiscriminately to all creative works regardless of any continued commercial interest in the copyright.Whereas traditionally, the contours of American copyright law guaranteed that this regulation of speechwas reasonably and effectively tailored to a viable commercial interest, today this regulation of speechburdens effectively all creative work, regardless of any continuing commercial interest in “Authors” tocontrol its dissemination or use.Some of these changes in the law have importantly strengthened the rights of creators to controland profit from the distribution of their works. That is the proper aim of copyright, with which Plaintiffshave no quarrel.But because of the radically indiscriminate nature of the most recent of these changes, the lawhas also produced an extraordinary “orphan class” of creative work — work that the author has nocontinuing interest to control, but which, because of the burdens of the law, no one else can effectively    CIVIL COMPLAINT FOR DECLARATORY JUDGMENT -2- 12345678910111213141516171819202122232425262728 and efficiently archive, preserve, or build upon in the digital environment for a term now reaching almosta century.This is an important and radical change in the nature of copyright law, coming just at a timewhen technology could enable the archiving, preservation, and reuse of content at a level never imaginedbefore. For 186 years, American law limited the grant of copyright to those authors who claimed theneed for copyright’s benefit. But because of the indiscriminate nature of copyright today, the burden of copyright regulation extends to work whether or not the srcinal author has any need for continuingprotection. That unnecessary burden blocks the cultivation of our culture and the spread of knowledge.Plaintiffs, the Chairman and the President of two archives that post public domain books, films,audio, and other creative works on the Internet, and the archives themselves, seek declaratory judgment:(1) that the Berne Convention Implementation Act (BCIA) is unconstitutional under the FreeSpeech Clause of the First Amendment, and(2) that the BCIA and Copyright Term Extension Act (CTEA) together create an “effectivelyperpetual” term with respect to works first published after January 1, 1964 and beforeJanuary 1, 1978, in violation of the Constitution’s Progress Clause.Plaintiffs also seek preliminary and permanent injunctive relief against the criminal enforcementof § 2(b) of the No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 (“NET Act”),amending 17 U.S.C. 506(a), with respect to works first published after January 1, 1964 and beforeJanuary 1, 1978. PARTIES 1. Plaintiff Brewster Kahle resides at 513B Upper Simonds Loop, San Francisco, California94129.2. Plaintiff Internet Archive is a 501(c)(3) public nonprofit corporation located at The Presidio of San Francisco, 116 Sheridan Avenue, San Francisco, CA 94129, and found on the Internet at<http://www.archive.org/>. Internet Archive’s principal activity is to build an “Internet library,”    CIVIL COMPLAINT FOR DECLARATORY JUDGMENT -3- 12345678910111213141516171819202122232425262728 with the purpose of offering permanent and free access for researchers, historians, and scholarsto works — including audio, books, films, websites, and software — that exist in digital format.Internet Archive is currently working, in partnership with Carnegie Mellon University, theNational Science Foundation, and the governments of India and China, on the “One MillionBook Project,” which is an effort to create a digital archive of one million books in fully-readable online text format. Among the books to be offered will be a large number of “orphan”works — i.e., books that remain under copyright, but are out of print and therefore not widelyavailable to the public. Internet Archive also operates the “Internet Bookmobile”, a mobileInternet bookstore that downloads, prints and binds public domain books for $1 each. Plaintiff Kahle is the Chairman of the Board of Internet Archive.3. Plaintiff Richard Prelinger resides at 649 15 th Avenue, San Francisco, California 94118.4. Plaintiff Prelinger Associates, Inc., a New York corporation known in the trade as PrelingerArchives, was founded in 1983 by Plaintiff Richard Prelinger in New York City andincorporated in 1985. In 20 years, it has grown into a collection of over 48,000 “ephemeral”(advertising, educational, industrial, and amateur) films. Prelinger Archives provides stock footage to the media and entertainment industries through its authorized sales representative,Getty Images, and is supported by royalty payments from Getty. In 2002, the film collectionwas acquired by the Library of Congress. Prelinger Archives remains in existence, holdingapproximately 4,000 titles on videotape and a smaller collection of film materials acquiredsubsequent to the Library of Congress transaction. Its goal remains to collect, preserve, andfacilitate access to films of historic significance that have not been collected elsewhere, or madecommercially available elsewhere. Included are films produced by and for many hundreds of important U.S. corporations, nonprofit organizations, trade associations, community and interestgroups, and educational institutions. The collection, including the portion acquired by the Libraryof Congress, currently contains over 10% of the total production of ephemeral films between1927 and 1987, and it may be the most complete and varied collection in existence of films
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