Tuesday, January 23, 2007


The Ninth Circuit has affirmed the lower court's rejection, on a 12(b)(6) motion, to various provisions of the Copyright Act. Here is a link. (It's the third case on the list). One aspect of the challenge was plaintiff's argument that the 1992 Automatic Renewal Act altered the "traditional contours of copyright protection," requiring First Amendment review. The court of appeals held, that under Eldred, such a review might well be triggered, but further held that Eldred had already addressed whether extending existing copyrights was constitutionally permissible. That wasn't the exact issue in Kahle, but the court of appeals believed effectively they were the same.

The second issue, also not addressed in Eldred, was whether the Limited Times language in Article I, section 8, clause 8, was a substantive limitation on Congress's power to alter durational provisions. It clearly is, and I have gone further in arguing that "to promote the progress of science" is also a substantive limitation. The court of appeals, however also believed Eldred had impliedly reached the issue, and that the question of whether a term was limited or not is a balancing test, one best left up to Congress.

In short, the court of appeals seemed to agree with plaintiff on the approach to use, but rejected the claims on the merits.


Ryland said...

Good decision, good for the Ninth Circuit. It makes the Eldred decision even better. I guess when someone loses a case, they always try to find something "good" about it, but I am not sure where Mr. Patry gets the idea that the Court agreed with Plaintiffs--one quote that shows otherwise, the Court said "Despite Plaintiffs' attempt to frame the issue in terms of the change from an opt-in to an opt-out system rather than in terms of extension, they make essentially the same argument, in different form, that the Supreme Court rejected in Eldred. It fails here as well." Similar terms are used by Google, this decision might effect those cases as well, eh?

William Patry said...

Ryland, here is what I said: "In short, the court of appeals seemed to agree with plaintiff on the approach to use, but rejected the claims on the merits." This referred to how the case should be analyzed, and I think what I said is quite correct, as was the follow-up that having analyzed it that way, the court went ahead and rejected the substantive arguments. It's the difference between procedure and merits.

As for the opt-in, opt-out, that term is used in Kahle in a strange sense - a Congressional decision how to craft legislation - that bears no familiarity with any litigation I am aware of. I once litigated a case against Verio where consumers had to opt-in for solicitation for domain name services, but that too is a different use.

Kevin said...

Mr. Patry, I'd be interested in your take on the case.

William Patry said...

Kevin, my views on the policy issues were pretty well set forth in the post about the 1909 Act, http://williampatry.blogspot.com/2006/12/in-praise-of-1909-copyright-act.html

Arun said...

I've never really understood how the copyright extensions could be constitutional. (I'm a physicist, not a lawyer.) By passing the act, wasn't Congress essentially taking something from me, namely the future right to use an image or whatever?

At one point in time, I had the right to use an image of Mickey Mouse in 2001. At a later point in time, I did not. So they took something from me without due process. (As far as I can tell.)

I could understand an extension that lengthens the copyright of everything created AFTER the act is passed, but not one that extends existing copyrights. It's like making something a crime after the fact and then prosecuting someone.

Just my opinion.

Ryland said...

Professor Patry, thanks for your reply and understood. I sort of think this might be useful in Google but need to review it further.

After seeing the article from Professor Sprigman (http://cyberlaw.stanford.edu/node/5110), I commented there what I am about to discuss here but realized I would like to get your views on it as well.

Depending on how you try to split the hairs of what "traditional contours of copyright protection" means--the Supreme Court in Eldred did look at the issue of the 1976 Act changing the way the terms of protection were calculated (if you assume that this changed the traditional contours of protection--which I reserve comment on), they state this right at the beginning of the Eldred decision and state that the CTEA was in line with this "change". Life plus 50 years has been the tradition for 30 years in the US (again, if you want to call that a "change") and since at least 1900 in the world--so actually life plus 50 is pretty traditional and if you really want to argue this, life plus actually goes further back than 1900.

But more to the point, the Supreme Court correctly pointed out that the First Amendment is taken into account because it does not protect ideas and there is the fair use and library exception provisions--these have become "traditional contours of copyright protection" which did not change with the passage of the CTEA. Very simple and the Ninth Circuit saw this and issued a simple opinion stating this.

I have a suggestion, rather than spending time on hair splitting of what something means, why not put time into solving the real issue which is how we solve the orphan works. Congress is struggling with it. There must be a solution that works for the copyright owner and those that want to use works no longer cared for. I am for it and am willing to assist anyway possible.