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On November 13, Larry Lessig argued Kahle v. Gonzales before the Ninth Circuit Court of Appeals. The panel consisted of Chief Judge Schroeder and Circuit Judges Farris and Rawlinson. Each oral argument is digitally recorded by the court and made available as a WMA audio file; I converted this one to MP3. It’s posted here:

Oral Argument in Kahle v. Gonzales, Ninth Circuit Case No. 04-17434

The court has no deadline by which it must issue its decision in the case, but cases are usually decided within a few months after oral argument.

About a year ago, I wrote about a company called TVMyPod, which sold iPods pre-loaded with a custom selection of movies, along with the DVDs of those movies. Three things have happened since that post: (1) TVMyPod changed its name to Load ‘n Go Video; (2) a bunch of movie studios sued Load ‘n Go Video for access control circumvention and copyright infringement (PDF complaint here, via Deep Links); (3) Load ‘n Go Video ceased operations, at least temporarily.

This is more or less the lawsuit I predicted would arise, though I missed the anti-circumvention angle. (DVD ripping is so easy and routine, and the tools to rip DVDs so polished and accessible, that I don’t really think of the discs as protected by access control measures anymore.) If Load ‘n Go Video has the desire and resources to fight it out, the case might resolve some questions which currently lack definitive answers:

1. May a consumer exercise her right to “space-shift” content through an agent, or must the consumer perform the copying herself for the privilege to attach?
2. May a consumer circumvent an effective technological measure that effectively controls access to a work in order to make a fair use of that work? (In other words, does 17 U.S.C. 1201(c)(1) have big pointy teeth?)
3. More generally, and potentially encompassing the previous two questions: Do the means matter for purposes of copyright infringement or anticircumvention liability, or do the ends matter? In other words, if the consumer ends up with an iPod full of movies corresponding to DVDs she owns, and there is some noninfringing route for the movies to make it to the iPod that causes no more or less harm to the copyright holder than another, potentially infringing route, should the law care which path the movies took?

I’m back from my 80-day trip around the world. You can read about my last two and a half months on my travel blog.

There have been some fascinating developments while I’ve been away, and I’m hoping to write about a few of them in the coming days.