] From the first U.S. copyright statute in 1790 until the
] Copyright Act of 1976, the U.S. had a conditional
] copyright system that limited copyright protection to
] those who took affirmative steps to claim it.
]
] Our tradition of conditional copyright stands in stark
] contrast to what we have today — an unconditional system
] that grants copyright protection whether or not an author
] desires it.

This is excellent. Lessig is back in court. This time he is arguing that by ending the requirement that copyrights be registered, Congress created an undo burden on first amendment activities by requiring a speaker to "clear" any copyrighted content in cases where the author has not explicitely reserved any rights and/or is not available.

The concept of orphaned works is one of my personal problems with the copyright law. If you're not going to publish a work, and it has been published in the past (its not a secret), I ought to be able to redistribute it. If I cannot, then people simply have no way of accessing the work, whether legally or not, simply because you don't think its in your financial interest to publish it and you're not going to lift a finger to release it into the public domain. I've run into several instances in the past when I've tried to access works of technical or philosophical interest and found myself unable to access them because they are copyrighted, out of print, and my used book store (Amazon) can't find a copy. Its bullshit.

That having been said, I do not understand how it can be unconstitutional for Congress to allow unregistered copyrights for American authors but legal for them to allow unregistered copyrights for forgein authors in compliance with a treaty. The rights which are claimed to be infringed here are not those of domestic copyright holders, but of domestic speakers who wish to use those copyrighted works. Such an infringement must still exist in the case where the original author is forgein.

Seems like international treaties should not supercede the Constitution, and if we agree to something which is unconstitutional we need to go back to the table and renegotiate it, or create an amendment. Otherwise national executives could collude to create agreements which undo domestic constitutional protections without going through a proper domestic amendment process.

] From the first U.S. copyright statute in 1790 until the
] Copyright Act of 1976, the U.S. had a conditional
] copyright system that limited copyright protection to
] those who took affirmative steps to claim it.
]
] Our tradition of conditional copyright stands in stark
] contrast to what we have today — an unconditional system
] that grants copyright protection whether or not an author
] desires it.

aka abandonware ... check out eldred.cc for more info on this and their proposed Public Domain Enhancment Act that would require
copyrights to be renewed for $1 every 50 years just to keep track
of who holds them to avoid this orphaned-works mess.