Kahle v. Gonzalez

The oral arguments before the 9th Circuit Court of Appeals were made November 13th. Lawrence Lessig argued on behalf of Brester Kahle who founded the Internet Archive.

In 2003, Eldred v. Ashcroft was decided by the Supreme Court. The Court said that extensions of copyright were not unconstitutional. At the same time, it was stated that a First Amendment problem might occur if copyright law experiences a particular change in "the contour" of history.

Kahle alleges that the change from having to register for copyright to automatic, default protection is a major change in the trends of intellectual property law. Since 100% of created works will now automatically be restricted, the plaintiffs believe that a significant threat to freedom of speech is present.

The oral arguments were posted here.

After listening, I fear a bad decision by the justices. Instead of focusing on Kahle and its First Amendment issues, the court seemed to be blinded by the government's smoke and mirrors. The lead justice repeatedly asks for the difference between Eldred and Kahle.

It is this: Eric Eldred challenged the extensions of copyright based on Clause 1, Section 8 of the Constitution which says intellectual property protection must last for "limited Times." Brewster Kahle challenges the change from opt-in copyright to opt-out copyright based on the First Amendment which stops the government from limiting free speech.

We can expect a decision in the coming months.

For more information from the lead counsel for the plaintiffs: this and this.