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Court rejects 'Eldred the Sequel'

Challenge to copyright viewed as repeat

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The bitter legacy of the failure of the Supreme Court's Eldred decision three years ago continues. For the second time, a lower court has rejected what it considers an attempt to re-run the case.

This week a 9th Circuit appeals court upheld the Supreme Court's 2003 decision in Eldred vs Ashcroft that Congress was entitled to extend copyright terms.

The challenge, brought by Brewster Kahle, of the Internet Archive, and the Prelinger Film Archive and supported by Lawrence Lessig and Stanford Law School, challenged the constitutionality of the extensions, arguing they needed First Amendment review. This would have paved the way for another tilt at the ability of Congress to extend copyright terms.

Kahle filed suit in March 2004, arguing that by changing the law from an opt-in model, where right holders had to explicitly renew copyright, to an opt-out model, where copyright was automatically renewed, increased the number of "orphan works" which were unpublished but still in copyright, and decreased the number of works in the public domain. The suit focussed on works created between 1964 and 1977.

"You'll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not," wrote Lessig, when the case was first filed.

Unfortunately, the District court disagreed, and in December 2004, granted motion to dismiss Kahle case without a hearing, explaining:

"Both of Plaintiffs’ main claims attempt to tangentially re-litigate Eldred. However, they provide no compelling reason why we should depart from a recent Supreme Court decision."

That rejection led to this week's appellate judgement. It was again rejected for re-running Eldred.

This time Judge Farris, writing the opinion, leant heavily on the Eldred ruling in rejecting both planks of the latest challenge. In his opinion, Eldred upheld that Congress did not exceeded its authority in passing the Copyright Terms Extension Act (1992), so the judges saw no reason to reverse it.

"Plaintiffs articulate policy reasons behind their position; they do not, however, provide a legal argument explaining why we should ignore the clear holding of Eldred." The plaintiffs also revived the case they'd made in Eldred, disputing the Congress' interpretation of the founding fathers' phrase "limited Times". The copyright challenged argued today copyright was "fixed at perpetual", in clear contradiction of the original intent.

But "limited" was a relative, rather than an absolute definition, wrote Farris, and although he conceded that the Eldred opinion had "sacrificed clarity for pithiness", saw no reason to limit Congress's scope to weigh how limited it should be at any given time. That was, in his view, the real intent of the original law.

The Appellate Judges' concluded, then, that:

"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."

One of Kahle's legal team, Christopher Sprigman, expressed his puzzlement with the judgement on his blog:

"Speaking only for myself, I must say that after reading and re-reading the 9th Circuit panel's opinion, I cannot conclude that the judges listened to what the Supreme Court said in Eldred," he wrote.

Au contraire.

Lower courts are unable to overturn the decisions of the Supreme Court, and they're loathe to toy with the issues without good cause. That's why it's called the Supreme Court - the clue's in the name - and its decisions are intended to set a precedent, not become a trampoline.

One can only conclude that the technicians behind Kahle repeated the strategic error of Eldred, and failed to demonstrate why this needed the Supremes' urgent attention. As The Register's Thomas C Greene noted during the 2002 arguments, the Supremes were often sympathetic to the plaintiffs, but they failed to be convinced.

Perhaps, he suggested at the time (see here and then in a follow-up exchange with Mr Eldred himself here), there's more to public interest is wider than "can't get it on t'internet". Particularly while real books still exist. ®

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