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.

Page 698

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The opinion filed on January 22, 2007, 474 F.3d 665, is withdrawn and an amended opinion is filed simultaneously with this order.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

Page 699

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...

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38 practice notes
  • Rehabilitating the property theory of copyright's First Amendment exemption.
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • 1 Diciembre 2013
    ...537 U.S. at 222. (36) Id. at 219. (37) Id. at 221 (emphasis added) (citation omitted). (38) See id. (39) See, e.g., Kahle v. Gonzales, 487 F.3d 697, 700 (9th Cir. 2007) (discussing whether Copyright Renewal Act of 1992 exceeded the traditional contours of copyright); Golan v. Gonzales (Gola......
  • Copyright essentialism and the performativity of remedies.
    • United States
    • William and Mary Law Review Vol. 54 Nbr. 4, March - March 2013
    • 1 Marzo 2013
    ...Eldred v. Ashcroft, 537 U.S. 186, 218-21 (2001) (rejecting First Amendment challenge to Copyright Term Extension Act); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007) ("[T]raditional First Amendment safeguards such as fair use and the idea/expression dichotomy are sufficient to vindica......
  • Congressional authority over intellectual property policy after Eldred v. Ashcroft: deference, empty limitations, and risks to the public domain.
    • United States
    • Albany Law Review Vol. 70 Nbr. 4, September 2007
    • 22 Septiembre 2007
    ...(10th Cir. Sept. 4, 2007). (24) Kahle v. Ashcroft, No. C-04-1127 MMC, 2004 WL 2663157, at *13-*18 (N.D. Cal. Nov. 19, 2004), aff'd, 487 F.3d 697 (9th Cir. 2007). (25) United States v. Martignon, 346 F. Supp. 2d 413, 416-17 (S.D.N.Y. 2004). But see KISS Catalog, Ltd. v. Passport Int'l Prods.......
  • Copyright Case Law Update - 2007, By Kenneth Ray Davis II
    • United States
    • JD Supra United States
    • 1 Febrero 2008
    ...Contents I. Jarvis v. K2 Inc., 486 F.3d 526 (9th Cir. Apr. 30, 2007) . . . . . . . . . . . . . . . . . . . . . 2B–1 II. Kahle v. Gonzales, 487 F.3d 697 (9th Cir. May 14, 2007), cert. denied — S.Ct. —, 2008 WL 59319 (U.S. Jan. 7, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......
  • Free signup to view additional results
33 cases
  • 847 F.3d 1075 (9th Cir. 2017), 14-16977, Center for Biological Diversity v. U.S. Environmental Protection Agency
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 2 Febrero 2017
    ...is barred by a statute of limitations. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 2011); Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007); Rattlesnake Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1100 (9th Cir. [8] The ESA's regulations define "......
  • Center for Biological Diversity v. U.S. Environmental Protection Agency, 020217 FED9, 14-16977
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 2 Febrero 2017
    ...is barred by a statute of limitations. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 2011); Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007); Rattlesnake Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1100 (9th Cir. [8] The ESA's regulations define&......
  • 501 F.3d 1179 (10th Cir. 2007), 05-1259, Golan v. Gonzales
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 4 Septiembre 2007
    ...passes constitutional muster. The Ninth Circuit recently upheld the dismissal of a nearly-identical CTEA challenge in Kahle v. Gonzales, 487 F.3d 697 (9th Cir.2007). The plaintiffs in Kahle, like plaintiffs here, argued that the CTEA's life-plus-70-years copyright term violated the "li......
  • 695 F.3d 873 (9th Cir. 2012), 09-56986, Ginsberg v. Northwest, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 13 Julio 2012
    ...of Review " Dismissals under Fed.R.Civ.P. 12(b)(6) for failure to state a claim are reviewed de novo." Kahle v. Gonzales, 487 F.3d 697, 699 (9th Analysis Based on our case law, Supreme Court precedent, and the ADA's legislative history and statutory text, we conclude that the ADA ......
  • Free signup to view additional results
1 firm's commentaries
  • Copyright Case Law Update - 2007, By Kenneth Ray Davis II
    • United States
    • JD Supra United States
    • 1 Febrero 2008
    ...Contents I. Jarvis v. K2 Inc., 486 F.3d 526 (9th Cir. Apr. 30, 2007) . . . . . . . . . . . . . . . . . . . . . 2B–1 II. Kahle v. Gonzales, 487 F.3d 697 (9th Cir. May 14, 2007), cert. denied — S.Ct. —, 2008 WL 59319 (U.S. Jan. 7, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......
4 books & journal articles
  • Rehabilitating the property theory of copyright's First Amendment exemption.
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • 1 Diciembre 2013
    ...537 U.S. at 222. (36) Id. at 219. (37) Id. at 221 (emphasis added) (citation omitted). (38) See id. (39) See, e.g., Kahle v. Gonzales, 487 F.3d 697, 700 (9th Cir. 2007) (discussing whether Copyright Renewal Act of 1992 exceeded the traditional contours of copyright); Golan v. Gonzales (Gola......
  • Copyright essentialism and the performativity of remedies.
    • United States
    • William and Mary Law Review Vol. 54 Nbr. 4, March - March 2013
    • 1 Marzo 2013
    ...Eldred v. Ashcroft, 537 U.S. 186, 218-21 (2001) (rejecting First Amendment challenge to Copyright Term Extension Act); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007) ("[T]raditional First Amendment safeguards such as fair use and the idea/expression dichotomy are sufficient to vindica......
  • Congressional authority over intellectual property policy after Eldred v. Ashcroft: deference, empty limitations, and risks to the public domain.
    • United States
    • Albany Law Review Vol. 70 Nbr. 4, September 2007
    • 22 Septiembre 2007
    ...(10th Cir. Sept. 4, 2007). (24) Kahle v. Ashcroft, No. C-04-1127 MMC, 2004 WL 2663157, at *13-*18 (N.D. Cal. Nov. 19, 2004), aff'd, 487 F.3d 697 (9th Cir. 2007). (25) United States v. Martignon, 346 F. Supp. 2d 413, 416-17 (S.D.N.Y. 2004). But see KISS Catalog, Ltd. v. Passport Int'l Prods.......
  • The access to knowledge mobilization and the new politics of intellectual property.
    • United States
    • Yale Law Journal Vol. 117 Nbr. 5, March 2008
    • 1 Marzo 2008
    ...values. See Eldred v. Ashcroft, 537 U.S. 186, 218 (2003); Golan v. Gonzales, 501 F.3d 1179, 1182 (10th Cir. 2007); Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007); see also LESSIG, supra note 115, at 228, Benkler, supra note 64, at 389-90. The access-to-medicines movement often insists......