FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BREWSTER KAHLE; INTERNET
ARCHIVE; RICHARD PRELINGER;
PRELINGER ASSOCIATES, INC., No. 04-17434
Plaintiffs-Appellants, D.C. No.
v.
CV-04-01127-MMC
ALBERTO R. GONZALES, Attorney ORDER AND
General, in his official capacity as AMENDED
Attorney General of the United OPINION
States,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
November 13, 2006—San Francisco, California
Filed May 14, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Farris
5591
KAHLE v. GONZALES 5593
COUNSEL
Jennifer Stisa Granick, Lawrence Lessig, and Christopher
Sprigman, Center for Internet and Society, Stanford, Califor-
nia, for the plaintiffs-appellants.
John S. Koppel, Department of Justice, Washington, D.C., for
the defendant-appellee.
5594 KAHLE v. GONZALES
ORDER
The opinion filed on January 22, 2007, Slip op. at 889, is
withdrawn and an amended opinion is filed simultaneously
with this order.
Chief Judge Schroeder and Judge Rawlinson have voted to
deny the petition for rehearing en banc. Judge Farris so rec-
ommends.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for rehearing en banc is DENIED. No further
petitions for rehearing or for rehearing en banc may be filed.
OPINION
FARRIS, Senior Circuit Judge:
Plaintiffs appeal from the district court’s dismissal of their
complaint. They allege that the change from an “opt-in” to an
“opt-out” copyright system altered a traditional contour of
copyright and therefore requires First Amendment review
under Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). They also
allege that the current copyright term violates the Copyright
Clause’s “limited Times” prescription.
Arguments similar to Plaintiffs’ were presented to the
Supreme Court in Eldred, which affirmed the constitutionality
of the Copyright Term Extension Act against those attacks.
The Supreme Court has already effectively addressed and
denied Plaintiffs’ arguments. We AFFIRM.
In March 2004, Plaintiffs Brewster Kahle, Internet Archive,
Richard Prelinger, and Prelinger Associates, Inc. filed an
KAHLE v. GONZALES 5595
amended complaint seeking declaratory judgment and injunc-
tive relief. Brewster Kahle and Internet Archive have built an
“Internet library” that offers free access to digitized audio,
books, films, websites, and software. Richard Prelinger and
Prelinger Associates make digital versions of “ephemeral”
films available for free on the internet. Each Plaintiff pro-
vides, or intends to provide, access to works that allegedly
have little or no commercial value but remain under copyright
protection. The difficulty and expense of obtaining permission
to place those works on the Internet is overwhelming; owner-
ship of these “orphan” works is often difficult, and sometimes
impossible, to ascertain.
Prior to 1978, the number of orphaned works was limited
by the renewal requirement. Renewal served as a filter that
passed certain works — mostly those without commercial
value — into the public domain. Along with formalities such
as registration and notice (which have also been effectively
eliminated), renewal requirements created an “opt-in” system
of copyright in which protections were only available to those
who affirmatively acted to secure them. The majority of cre-
ative works were thus never copyrighted and only a small per-
centage were protected for the maximum term.
The Copyright Renewal Act of 1992, Pub. L. No. 102-307,
106 Stat. 264 (1992), and the Sonny Bono Copyright Term
Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998),
altered the system to one Plaintiffs characterize as “opt-out.”
Among other effects, the CRA eliminated the renewal
requirements for works created between 1964 and 1977 and
thus extended their term; the CTEA effected a further exten-
sion. Plaintiffs confine their First Amendment challenge to
the extensions granted to those works.
Eliminating the renewal requirement dramatically increased
the average copyright term and correspondingly decreased the
number of works currently entering the public domain. The
change is most noticeable for works that have little commer-
5596 KAHLE v. GONZALES
cial value and thus, under an opt-in system, provide little
incentive for their creators to renew the copyright. Plaintiffs
characterize this change as altering the “traditional contours
of copyright” and therefore requiring First Amendment
review under Eldred.
Plaintiffs also argue that they should be allowed to present
evidence that the present copyright term violates the Copy-
right Clause’s “limited Times”1 prescription as the Framers
would have understood it. That claim was not directly at issue
in Eldred, though Justice Breyer discussed it extensively in
his dissent. See Eldred, 537 U.S. at 243. Plaintiffs assert all
existing copyrights are effectively perpetual.
Although the Supreme Court recently addressed similar
issues in Eldred, Plaintiffs argue that their specific claims
were not answered — or if they were, only in dicta. They
place particular emphasis on the increased possibilities for
archiving and disseminating expressive content over the Inter-
net and the detrimental impact the change from an opt-in to
an opt-out system has on those efforts. Plaintiffs articulate
policy reasons behind their position; they do not, however,
provide a legal argument explaining why we should ignore
the clear holding of Eldred.
I
Dismissals under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim are reviewed de novo. Decker v. Advantage Fund,
Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). Complaints are
only “dismissed for failure to state a claim [if] it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Con-
1
The Copyright Clause grants Congress the power “To 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.” U.S. CONST. art. I, § 8, cl. 8.
KAHLE v. GONZALES 5597
ley v. Gibson, 355 U.S. 41, 45-46 (1957). The court accepts
the complaint’s well pleaded allegations of fact and construes
them in the plaintiff’s favor. Zimmerman v. City of Oakland,
255 F.3d 734, 737 (9th Cir. 2001).
Plaintiffs assert that the change from discretionary to auto-
matic renewal and subsequent extension of copyrights for
works created between 1964 and 1977 altered the “traditional
contours of copyright protection.” Under Eldred, that may
trigger First Amendment review. 537 U.S. at 221. However,
Eldred also upheld the CTEA, in effect answering Plaintiffs’
challenge.
[1] Eldred addressed whether extending existing copy-
rights was constitutionally permissible. The Court observed
that when Congress passed the CTEA, it “placed existing and
future copyrights in parity. In prescribing that alignment, we
hold, Congress acted within its authority and did not trans-
gress constitutional limitations.” Id. at 194. Thus, extending
existing copyrights to achieve parity with future copyrights
does not require further First Amendment scrutiny. Instead,
traditional First Amendment safeguards such as fair use and
the idea/expression dichotomy are sufficient to vindicate the
speech interests affected by the CRA and the CTEA. Id. at
219-20.
[2] The CRA and the CTEA eliminated the renewal
requirements and lengthened the term for works created
between 1964 and 1977, and in doing so they placed existing
copyrights in parity with those of future works. The exten-
sions left intact “built-in First Amendment accommodations”
such as the idea/expression dichotomy and fair use. Eldred,
537 U.S. at 219.
[3] By removing the renewal requirement, the CRA effec-
tively extended copyright protection for works that would oth-
erwise have fallen into the public domain. The CTEA further
extended those works’ protection. Congress could have
5598 KAHLE v. GONZALES
achieved the identical result by extending the term of existing
copyrights before their renewal was required. Eldred tells us
that such extensions would not violate the First Amendment.
Id. at 221. It therefore follows that the materially indistin-
guishable CRA and CTEA provisions are constitutional as
well. Here, as in Eldred, extending existing copyrights while
preserving speech-protective measures does not alter the “tra-
ditional contours of copyright protection.”
[4] Despite Plaintiffs’ attempt to frame the issue in terms
of the change from an opt-in to an opt-out system rather than
in terms of extension, they make essentially the same argu-
ment, in different form, that the Supreme Court rejected in
Eldred. It fails here as well.
II
In addition to their First Amendment claim, Plaintiffs make
the closely related argument that the current copyright term
violates the Copyright Clause’s “limited Times” prescription
by creating a term that “the Framers would have considered
. . . so long as to be effectively perpetual.” (Pet. Br. at 48.)
This second claim overlaps with the first in that the Plaintiffs’
criticism of the elimination of formalities for works created
between 1964 and 1977 is merely another way of saying that
the copyright term is too long — put differently, “effectively
perpetual.”
[5] Eldred disposes of Plaintiffs’ second argument, as it
did their first. Eldred did not purport to directly address
whether the phrase “limited Times” places substantive limits
on copyright duration. See Eldred, 537 U.S. at 210 n.17 (not-
ing that whether an average copyright duration of ninety-five
years is at the outer boundaries of “limited Times” was not
before the Court). Nevertheless, the Court denied Justice
Breyer’s assertion that the term enacted by the CTEA was
constitutionally impermissible, observing that “[i]t is doubtful
. . . that those architects of our Nation, in framing the ‘limited
KAHLE v. GONZALES 5599
Times’ prescription, thought in terms of the calculator rather
than the calendar.” Eldred, 537 U.S. at 210 n.16. Plaintiffs
seize on that phrase as evidence that the Court misunderstood
the Framers’ intent behind the phrase “limited Times.” The
Court’s phrasing in Eldred sacrificed clarity for pithiness: the
calculator and the calendar are merely different ways of mea-
suring economic benefit to authors.
[6] However, the Supreme Court clearly grasped the role
“limited Times” play in the copyright scheme and the Fram-
ers’ understanding of that phrase. In contrast to Plaintiffs, the
Court has long defined “limited Times” by a balancing rather
than an absolute test. See Eldred, 537 U.S. at 205-08; Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 429 (1984); Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156 (1975) (noting that the “limited copyright
duration required by the Constitution” serves to encourage
authors while eventually bringing their works within the pub-
lic domain).
[7] Put differently, the outer boundary of “limited Times”
is determined by weighing the impetus provided to authors by
longer terms against the benefit provided to the public by
shorter terms. That weighing is left to Congress, subject to
rationality review. See Eldred, 537 U.S. at 206-07 (“Congress
passed the CTEA in light of demographic, economic, and
technological changes, and rationally credited projections that
longer terms would encourage copyright holders to invest in
the restoration and public distribution of their works.” (inter-
nal citations omitted)). The Court was cognizant of the mean-
ing of “limited Times” when assessing the current copyright
term; it simply reached a different conclusion than that
desired by Plaintiffs. Future extensions may or may not sur-
vive review, but the current term is constitutional. Plaintiffs’
claim was properly dismissed.
Both of Plaintiffs’ main claims attempt to tangentially re-
litigate Eldred. However, they provide no compelling reason
5600 KAHLE v. GONZALES
why we should depart from a recent Supreme Court decision.
AFFIRMED.