KAHLE v. GONZALES
The Ninth Circuit Court of Appeals today released an opinion in KAHLE v. GONZALES, No. 04-17434, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.
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 (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. 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 . . .