Late last year, we wrote a little about Larry Lessig's latest challenge concerning the constitutionality of our current copyright laws. As you hopefully recall, a few years ago he challenged the constitutionality of Congress continually extending copyright term lengths -- and lost. The Constitution is clear that the purpose of intellectual property law is to give individuals control over their works for a limited time. However, every time Mickey Mouse gets close to being put in the public domain, a bunch of lobbyists out of Hollywood convince Congress to extend copyrights. It was an unfortunate decision, but Lessig came back recently with a new lawsuit, saying that the Copyright Act of 1976, which changed the copyright system from "opt-in" to "opt-out" is also unconstitutional. These days, the second you write anything, it receives an automatic copyright. Prior to 1976, you actually had to register the content first -- meaning that there was lots of content in the public domain. These days, it's fairly difficult to get your content into the public domain (which was one of the challenges Lessig's Creative Commons operation has been trying to help solve). Unfortunately, though, it looks like the 9th Circuit Court of Appeals isn't buying Lessig's argument in the case Kahle v. Gonzalez. In fact, they claim that they don't see how the case really is any different than the Eldred copyright extension case, which is surprising, since it really is discussing something entirely different. Either way, this case is far from over. Lessig and Kahle can seek review from a larger panel, and of course, later can appeal to the Supreme Court as well -- but overall, this isn't particularly good news for copyright.
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