In Kahle, the issue is Congress’ change from a self-selecting system of copyright, where people had to register and give notice to indicate that they wanted copyright protection, to an indiscriminate system where every napkin doodle is copyrighted and people are forced to license or dedicate their works to the public domain, or make some other indication that they do not want copyright protection. This change from an opt-in to an opt-out system has produced generations of “orphan works” — creative works that are still under copyright, but for which owners are absent or prohibitively expensive to find. People who want to make use of an orphan work cannot locate the copyright owner to obtain permission. These would-be creators’ fear that someone will appear years later alleging copyright infringement chills new creative uses.
The 10th Circuit’s decision in Golan should make it more likely that the Supreme Court will grant a review and hear the Kahle case, because there is now a split between two federal circuit courts regarding the First Amendment’s application to Congress’ copyright lawmaking.
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