The U.S. Court of Appeals for the Ninth Circuit affirmed a district court dismissal of a constitutional challenge against the extension of copyright renewal terms (previously upheld by the Supreme Court in its 2003 decision in Eldred v. Ashcroft). Kahle et al. v. Gonzalez, Case No. 04-17434 (9th Cir., Jan. 22, 2007) (Farris, J.).

The plaintiffs constituted individuals and companies providing free internet access to a library of works, including digitized audio, books, films, web sites, ephemeral films and software. These so-called “orphan” works were of minimal or no commercial value but protected under the Copyright Renewal Act of 1992 (CRA) and the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which eliminated renewal requirements for works created between 1964 and 1977. The plaintiffs characterized this change as a conversion from an opt-in to an opt-out copyright system, which granted many of the “orphan” works an “effectively perpetual” copyright that precluded them from the public domain. The Court acknowledged that the renewal term extensions were most noticeable for such “orphan” works because those authors were in many case not ascertainable and were in any event unlikely to affirmatively renew the copyright. However, obtaining consent from such author use then “orphaned” works could prove overwhelming, difficult, expensive and often impossible.

The plaintiffs first argued here that the extended copyright term altered the “traditional contours” of copyright, thereby triggering review under the First Amendment. The Court noted that the CRA and CTEA eliminated renewal requirements, but explained that the purpose of these efforts was “simply [to] place existing copyrights in parity with those of future works.” Accordingly, the Court rejected the plaintiffs’ claim in view of the express affirmation by the Supreme Court in Eldred of the constitutionality of such efforts. Additionally, the Court cited fair use and the idea/expression dichotomy as “traditional First Amendment safeguards … sufficient to vindicate the speech interests affected by the CRA and CTEA.”

Secondly, the plaintiffs argued that the current, “effectively perpetual,” copyright term violated the constitutional framers’ meaning of the “limited times” proscription found in the Copyright Clause, which grants Congress the power “[t]o promote the progress of Science and Useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Court found that Eldred effectively addresses this claim and stated “the [Supreme] Court has long defined ‘limited times’ by a balancing rather than absolute test.” The Court explained that Congress determines the “limited time” of copyright, subject to rationality review, by weighing the creative incentive of longer terms versus the public benefit of shorter terms.

The Court concluded that the plaintiffs merely sought, without any compelling rationale, to relitigate arguments rejected by the Supreme Court in Eldred and affirmed the lower court’s dismissal.