After reading and several times re-reading it, I am constrained to conclude that Judge Farris’s 8-page opinion [in Brewster Kahle v. A.-G. U.S.] for the 9th Circuit panel is simply indefensible. I had the strong impression at oral argument that the panel had not understood (or perhaps even read) the briefs we or the government had submitted, and was in any event not particularly interested in the real issues in the case. By my lights, the opinion confirms this.
C. Sprigman, “9th Circuit rejects constitutional challenge to copyright laws in Kahle v. Gonzales” Public Knowledge
The suit was to have the shift in U.S. copyright law from the opt-in position, which ruled from the beginning until 1976, to the opt-out position that exists there now (and here always) declared unconstitutional. The brunt of the argument challenging the current law was that the shift in the “traditional contours” of the law unduly burdens speech.
Larry Lessig argued the case and has blogged about a part of the decision. The comments, by the way, suggest that Lessig and friends missed the point that the court was making.
The decision is available here [PDF].