joegratz.net

The plaintiffs in Kahle v. Ashcroft have filed this brief in the Ninth Circuit Court of Appeals. It’s long, but it’s substantially more readable — especially by laypeople — than your average appellate brief. I imagine that this may have been the point.

The only substantial change in appellants’ position is the abandonment of the assertion that Congress acted unconstitutionally by failing to enact copyright laws that “Promote the Progress of Science”. To prevail, plaintiffs would have had to prove that there is no conceivable rational relationship between Congress’s actions and the constituional goal. While I continue to believe that the Copyright Renewal Act fails the rational basis test, since it is a bare wealth transfer to those who created works in the past with no benefit to prospective creators, this was probably a canny move. The rational basis test is a near-insuperable obstacle, and the court’s attention is better focused on Kahle’s stronger claims.