US Supreme Court decline to hear Kahle case

The US Supreme Court has decided against hearing the appeal of Brewster Kahle challenging the constitutionality of repeated Congressional extension of copyright term based on the impact of such extensions on orphan works i.e. those with no identifiable copyright owner. It is hardly surprising since the case was an attempt to revive the basic challenge raised by the Eldred v Ashcroft case and rejected by the Supreme Court in 2003.

"The U.S. Supreme Court has declined to hear the appeal of Kahle v. Ashcroft, brought by Internet Archive and Open Content Alliance founders Brewster Kahle and Rick Prelinger in 2003, which challenged the constitutionality of the current copyright regime. Although not unexpected, the Supreme Court's refusal comes after a recent ruling by the 10th Circuit Court of Appeals raised hopes of a review and lets stand the Ninth Circuit Court of Appeals' rejection, effectively ending the case.

The Kahle suit was launched in the wake of the unsuccessful 2003 Eldred v. Ashcroft case, which challenged Congess's extension of copyright terms. In that ruling, the Supreme Court held that changes by Congress to the "traditional contours" of copyright law warranted a First Amendment review. Kahle v. Ashcroft contended that Congress's sweeping changes to copyright law in 1976 were enough of a change in the "contours of copyright" to require review."

Larry Lessig's first ever courtroom victory on technical and procedural issues in the Golan case last autumn had however raised some slim hopes that the courts might be prepared to start reining in the worst excesses of extensions to intellectual property laws.