Changes to copyright law survive First Amendment challenge, Ninth Circuit holds

The Ninth Circuit Court of Appeals has rejected a First Amendment challenge to recent statutes that allegedly changed the "traditional contour" of copyright law.  The court issued its opinion yesterday in Kahle v. Gonzales, a case brought by Professor Lawrence Lessig and the Center for Internet and Society at Stanford.

Plaintiffs characterized the copyright system as historically an "opt-in" system, meaning that copyright protections were available only to those who acted affirmatively to secure them.  In the 1990's Congress changed the system to one plaintiffs called "opt-out," meaning that copyright is granted automatically unless disclaimed. Plaintiffs in Kahle claimed that this change will radically decrease the number of works entering the public domain, altering the "traditional contours" of copyright and violating of the free speech protections of the First Amendment. 

Plaintiffs further argued that the current copyright term is too long, violating the provision in the Copyright Clause of the Constitution that copyright be secured "for limited Times."

Plaintiffs sought to frame their arguments in such a way as to avoid the 2003 U.S. Supreme Court holding in Eldred v.Ashcroft that statutory extensions of existing copyrights did not violate the Constitution.  But the Ninth Circuit concluded that both the "opt-in/opt-out" argument and the "limited Times" argument were disposed of by Eldred, and that plaintiffs' claims must be dismissed.