On Tuesday, we wrote about how the 9th Circuit Court of Appeals wasn't interested in the Kahle v. Gonzalez case, claiming that it was no different than the Eldred case, and there was no reason to retry the case. Larry Lessig has now written up his own thoughts, expressing surprise at the reasoning, and noting that the only real similarity is that both cases were argued by Lessig himself. But, beyond that, they're quite different. In fact, as Lessig notes, the point of the Kahle case was to make an argument based on the standard set up in Eldred, that you can only challenge changes to copyright law if they are going against the "tradition" of copyright law -- and the Kahle case focuses on how the 1976 changes completely changed the tradition of copyright by switching it from opt-in to opt-out. In Eldred, Lessig was challenging the concept of copyright extension, which the court found didn't go against the tradition of copyright, since Congress had done plenty of extensions in the past. However, in the comments to Lessig's post, Seth Finkelstein makes a very good point that perhaps explains the court's thinking. They're viewing the Eldred decision to mean that Congress can do whatever it wants to modify the procedural aspect of copyrights, and it doesn't trigger a First Amendment constitutional review. It's only if they change the content aspect that it becomes a constitutional issue. That would explain why they would consider both Eldred and Kahle to fall under the same banner -- trying to make a procedural issue into something that they don't consider a First Amendment one. So, as Lessig considers his next steps, perhaps the trick really is to explain how the procedural issue is a First Amendment claim -- because that's where the court doesn't appear to be convinced.
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