487 F.3d 697 (9th Cir. 2007), 04-17434, Kahle v. Gonzales

• Docket Nº: 04-17434.
• Citation: 487 F.3d 697, 82 U.S.P.Q.2d 1797
• Party Name: Brewster KAHLE; Internet Archive; Richard Prelinger; Prelinger Associates, Inc., Plaintiffs-Appellants, v. Alberto R. GONZALES, Attorney General, in his official capacity as Attorney General of the United States, Defendant-Appellee.
• Case Date: May 14, 2007
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 697

487 F.3d 697 (9th Cir. 2007)

82 U.S.P.Q.2d 1797

Brewster KAHLE; Internet Archive; Richard Prelinger; Prelinger Associates, Inc., Plaintiffs-Appellants,

v.

Alberto R. GONZALES, Attorney General, in his official capacity as Attorney General of the United States, Defendant-Appellee.

No. 04-17434.

United States Court of Appeals, Ninth Circuit.

May 14, 2007

Argued and Submitted November 13, 2006-San Francisco, California.

Appeal from the United States District Court for the Northern District of California DC. No. CV-04-01127-MMC, Maxine M. Chesney, District Judge, Presiding.

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Jennifer Stisa Granick, Lawrence Lessig, and Christopher Sprigman, Center for Internet and Society, Stanford, California, for the plaintiffs-appellants.

John S. Koppel, Department of Justice, Washington, D.C., for the defendant-appellee.

Before: Mary M. Schroeder, Chief Circuit Judge, Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.

ORDER

The opinion filed on January 22, 2007, 474 F.3d 665, is withdrawn and an amended opinion is filed simultaneously with this order.

Chief Judge Schroeder and Judge Rawlinson have voted to deny the petition for rehearing en banc. Judge Farris so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

AMENDED OPINION

FARRIS, Senior Circuit Judge:

Plaintiffs appeal from the district court's dismissal of their complaint. They allege that the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright and therefore requires First Amendment review under Eldred v. Ashcroft, 537 U.S. 186, 221, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003). They also allege that the current copyright term violates the Copyright Clause's "limited Times" prescription.

Arguments similar to Plaintiffs' were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. The Supreme Court has already effectively addressed and denied Plaintiffs' arguments. We AFFIRM.

In March 2004, Plaintiffs Brewster Kahle, Internet Archive, Richard Prelinger, and Prelinger Associates, Inc. filed an amended complaint seeking declaratory judgment and injunctive relief. Brewster Kahle and Internet Archive have built an "Internet library" that offers free access to digitized audio, books, films, websites, and software. Richard Prelinger and Prelinger Associates make digital versions of "ephemeral" films available for free on the internet. Each Plaintiff provides, or intends to provide, access to works that allegedly have little or no commercial value but remain under copyright protection. The difficulty and expense of obtaining permission to place those works on the Internet is overwhelming; ownership of these "orphan" works is often difficult, and sometimes impossible, to ascertain.

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Prior to 1978, the number of orphaned works was limited by the renewal requirement. Renewal served as a filter that passed certain works mostly those without commercial value into the public domain. Along with formalities such as registration and notice (which have also been effectively eliminated), renewal requirements created an "opt-in" system of copyright in which protections were only available to those who affirmatively acted to secure them. The majority of creative works were thus never copyrighted and only a small percentage were protected for the maximum term.

The Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (1992), and the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998), altered the system to one Plaintiffs characterize as "opt-out." Among other effects, the CRA eliminated the renewal requirements for works created between 1964 and 1977 and thus extended their term; the CTEA effected a further extension. Plaintiffs confine their First Amendment challenge to the extensions granted to those works.

Eliminating the renewal requirement dramatically increased the average copyright term and correspondingly decreased the number of works currently entering the public domain. The change is most noticeable for works that have little commercial value and thus, under an opt-in system, provide little incentive for their creators to renew the copyright. Plaintiffs characterize this change as altering the "traditional contours of copyright" and therefore requiring First Amendment review under Eldred.

Plaintiffs also argue that they should be allowed to present evidence that the present copyright term violates the Copyright Clause's "limited Times" ¹ prescription as the Framers would have understood it. That claim was not directly at issue in Eldred, though Justice Breyer discussed it extensively in his dissent. See Eldred, 537 U.S. at 243, 123 S.Ct. 769. Plaintiffs assert all existing copyrights are effectively perpetual.

Although the Supreme Court recently addressed similar issues in Eldred, Plaintiffs argue that their specific claims were not answered--or if they were, only in dicta. They place particular emphasis on the increased possibilities for archiving and disseminating expressive content over the Internet and the detrimental impact the change from an opt-in to an opt-out system has on those efforts. Plaintiffs...