November 13, 2006 · Lessig
The 9th Circuit heard arguments today in our case Kahle v. Gonzales.
This case was filed after Eldred v. Ashcroft was decided. It is built upon the rule Eldred articulated.
If you remember, in Eldred, we raised a First Amendment challenge to Congress’ extension of existing copyright terms. Our argument was: “this is a regulation of speech; apply ordinary First Amendment review to the statute.”
The government argued the other extreme — no First Amendment review of a copyright statute. It argued the Court should affirm the DC Circuit’s rule that copyrights were “categorically immune from challenges under the First Amendment.”
The Court adopted neither position. It refused to apply ordinary First Amendment review to a copyright statute. But it also refused to exempt copyright statutes from First Amendment review. Instead, as the Court wrote:
To the extent such assertions [assertions where someone claims a right to "make other peoples' speeches"] raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
This is a kind of tradition-triggered standard: So long as Congress stays within the “traditional contours of copyright protection,” then further First Amendment review is unnecessary. But if Congress changes a “traditional contour of copyright protection,” then the “built-in free speech safeguards” may not be sufficient.
We alleged a change in perhaps the most fundamental “traditional contour” of copyright protection — the shift from the opt-in system that copyright was from 1790=1976 to the opt-out system that copyright has become in the period since.