Ninth Circuit Affirms Constitutionality of the Copyright Term Extension Act and the Copyright Renewal Act

Case: Kahle v. Gonzales, No. 04-17434 (9th Cir. May 14, 2007) (amended and en banc denied)

The One Sentence Summary: A First Amendment challenge brought by the builders of an "Internet library" was unsuccessful because the Ninth Circuit held the Copyright Term Extension Act ("CTEA") and the Copyright Renewal Act of 1992 ("CRA") did not "alter a traditional contour of copyright protection" or violate the Copyright Clause's "limited Times" prescription.

What They Were Fighting About: Plaintiffs appealed the district court's dismissal of their complaint and asserted a First Amendment challenge to the CTEA and the CRA. First, the plaintiffs alleged that the elimination of copyright renewal requirements under the CTEA and CRA changed the "opt-in" copyright system to an "opt-out" system, which altered the "traditional contours of copyright protection" and therefore required First Amendment review under Eldred v. Ashcroft, 537 U.S. 186 (2003). Second, the plaintiffs argued that the current copyright term was "essentially perpetual" and therefore violated the Copyright Clause's "limited Times" prescription. In Eldred v. Ashcroft, however, the U.S. Supreme Court addressed First Amendment arguments similar to those brought by plaintiffs and found that extending existing copyrights was constitutionally permissible.

Ninth Circuit Holdings

• While the plaintiffs provided policy reasons for their arguments and claimed that their specific claims were either not answered or were only answered in dicta in Eldred, the Ninth Circuit held that plaintiffs did not provide a legal argument explaining why the Court should "ignore the clear holding of Eldred."
• Even though the CTEA and the CRA eliminated renewal requirements and extended the copyright term for works created between 1964 and 1977, the Ninth Circuit held that Eldred's approval of efforts achieving parity between existing copyrights and those for future works refuted plaintiff's claim that the creation of an "opt-out" system should trigger First Amendment scrutiny.
• The meaning of the phrase "limited Times" is construed pursuant to a balancing test, i.e., whether the encouragement provided to authors by longer copyright terms outweighs the benefit provided to the public by shorter terms. While the weighing is left to Congress (subject to rationality review), the Supreme Court in Eldred already upheld the constitutionality of the current copyright term so plaintiffs' claim was properly dismissed.