Stanford Center for Internet and Society

On January 4, the Supreme Court denied the petition for cert in Kahle v. Gonzales. On that same day, in a victory for CIS, the 10th Circuit refused the government's petition for rehearing in Golan v. Gonzales.

CIS has petitioned for review of the Ninth Circuit's decision in Kahle v. Gonzalez, asking the Supreme Court to clarify the scope of the “traditional contours of copyright protection” referred to in Eldred, and to decide whether the change from an “opt-in” to an “opt-out” system of copyright a change in a traditional contour of copyright protection.

There is one thing about the 9th Circuit’s decision in Kahle v. Gonzales that I could not find any discussion about – namely, the international copyright law implications of the issue. The basics first.

here.

Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a “similar” claim, it would not “ignore the clear holding of Eldred” (about, apparently, not the same claim, but a “similar” claim.)

Some sad news to report: the 9th Circuit has rejected constitutional challenges to the copyright laws in *Kahle v. Gonzales*. The opinion is here. Sad, yes, but also positively maddening, for reasons I will explain shortly.

Lessig will argue at the Appeal in Kahle v. Ashcroft at 9AM November 13, 2006. A post by the Plaintiff Brewster Kahle.

Kahle vs. Gonzales (formerly Kahle vs. Ashcroft) has now been briefed to the Ninth Circuit. Appellants' brief. Government opposition. Appellants' reply brief.

Today we filed the appellant's opening brief in the Ninth Circuit. The brief argues that, starting with the 1976 Copyright Act, Congress changed the fundamental nature of copyright from an opt-in to opt-out system. Therefore, under the rule of Eldred v. Ashcroft, the changes are subject to First Amendment review. Download file

So the district court has granted the government's motion to dismiss in Kahle v. Ashcroft. Here's the order.

We're going to fight on to the Ninth Circuit, which is where the game was bound to be decided anyway. More comments coming soon on the district court's order.

Oral argument on the government's motion to dismiss in Kahle v. Ashcroft, previously scheduled for Oct. 29, has been moved to Dec. 10. Stay tuned.