14 May 2007

No Widows

Just orphans.

The Ninth Circuit denied rehearing en banc in Kahle v. Gonzales, No. 04–17434 today. The court's opinion is not materially different from its previous one, in which it said "This question was already decided in Eldred, and you can't relitigate it however you try to recharacterize the underlying questions."

The Kahle plaintiffs attempted to characterize the Sonny Bono Copyright Term Extension Act of 1998 as an unconstitutional infringement upon their (the plaintiffs') right to expect certain works to fall into, or be, in the public domain, and therefore a violation of their First Amendment rights and an improper exercise of Congressional power. The First Amendment question is a settled question of law under Nation Enterprises. (Hint: Whenever someone asserts a First Amendment right to copy someone else's original expressive work, and that work is not that of a federal employee in the course of his/her duties, the First Amendment claim is at best extremely dubious... because "proper" copying is covered as "fair use" in the Copyright Act itself.) Eldred itself settled the question of Congressional power.