When professor Larry Lessig lost his Supreme Court challenge ("the Eldred case") concerning the constitutionality of Congress continually extending the length of copyright, he seemed to spend over a year kicking himself for the mistakes that he believes he made in arguing the case. However, it was only a matter of time before he came back fighting, using the results of the Eldred case to his advantage. He's been writing some posts on his blog about his latest case, Kahle vs. Gonzalez, which actually uses the specifics of the ruling in the Eldred case not to focus on copyright extension, but to question the constitutionality of switching to an "opt-out" system of copyright. For years, copyright was an "opt-in" system. If you wanted to get a copyright, you needed to register. However, in 1976, the law changed to make it opt-out. That meant that any new creative work was automatically considered covered by copyright. While you could register it for additional protections, you didn't need to. That flipped the equation, taking a ton of content out of the public domain and covering it by automatic copyright -- something that Lessig and Brewster Kahle are now arguing goes against "the traditional contour of copyright protection." This is important, because the Supreme Court's decision in Eldred focused on that very test. While it may be a while before any final results are in, if the case goes in favor of Kahle and Lessig, it could mean a huge change in copyright law. Some may say it would just shift the law back to what it was 30 years ago, but the changes in technology and the means of publishing would suggest that the impact would be much more far reaching than simply turning back the clock.
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