Ninth Circuit on Kahle v. Gonzales

C. Petite of Scriveners Error reported yesterday that the Ninth Circuit has declined to rehear Kahle v. Gonzales en banc. (Kahle v. Gonzales is the case the challenges the constitutionality of changing the copyright system from an opt-in system to an opt-out system.) I disagree with Petite a little bit; I don’t believe that fair use as it exists adequately addresses First Amendment concerns. (Of course, he stated that the First Amendment problem is a settled matter of law, which is really not the same thing.) At any rate, I think Seth Finkelstein was correct in his response on Lessig’s blog when the case was first decided: the court views procedural aspects of copyright as Congress’s bailiwick, and thus treats Kahle like the Eldred case.

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