Lessig on Kahle decision

here.

Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a “similar” claim, it would not “ignore the clear holding of Eldred” (about, apparently, not the same claim, but a “similar” claim.)

I don’t quite get this negative horse-shoe principle of judicial decision making (you’re close enough to a losing case to lose). For the claim in Eldred is neither “similar” in form, and is certainly not “similar” in substance."

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In Kahle complaint, Kahle asked the court to declare the CTEA unconstitutional under the First Amendment. The Eldred case was all about the CTEA. The Supreme Court in stated, again we are talking about the CTEA here: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” They noted the change in the determination of terms to life plus 50 in 1976, this is at the beginning of the decision.

So there is no difference between Kahle and Eldred in this respect, since it is the CTEA that the Supreme Court was discussing.

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