Say That Again

by Mike Masnick

Lessig Looks For Explanation Of Kahle Decision

from the thinking-it-all-through dept

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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  • identicon
    misanthropic humanist, 26 Jan 2007 @ 1:38pm

    false dichotomy

    The problem. for me, is the distinction between procedural and content in the first place. I suppose that Lessig wants to force a review, and the salient facts are the effects of changes on the wealth of the public domain, as a measure of "how much good for societry" a given copyright model would predict. The graphs are impressively scientific, if nothing else you can't accuse the man of lack of rigor.

    But I fear he is making the mistake that many scientists and logicians make when they try to tackle lawyers (I know Lessig is a lawyer, but I think he is a scientist in lawyers clothing :). That mistake is to get bogged down in semantics.

    His model is void unless ones admits that any change of magnitude (content) is equal to a change of vector (procedural) in its ultimate effect on the utility of copyright to business and society as a whole.

    For a really poor Slashdot style analogy I just pulled out of my ass:

    It's like saying that chocolate cake makes you fat, but water is okay, therefore you can drink as much water as you like and nothing bad will happen. But as we know, too much water will kill you. So just because copyrights work with limited terms it doesn't mean copyrights wont spectacularly fail as their terms tend towards infinity. Part of that failure will be a chilling effect on speech and therefore its amenable to First Amendment analysis. Or is that just too glib?

    reply to this | link to this | view in chronology ]

  • identicon
    Ethan Bauley, 27 Jan 2007 @ 9:50am

    Go Lessig, it's your birthday.

    Those last few chapters of "Free Culture" are some of the most heartbreaking moments in literary history to me.

    It's like copyright "Anna Karenina."

    I hope Lessig pulls this one out somehow!

    reply to this | link to this | view in chronology ]

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