The Supreme court has refused to review a case that may have resulted in declaring an element of copyright law unconstitutional. (Lots of 'ifs' there). From the article:
In the case, Internet Archive founder Brewster Kahle challenged the copyright protection given to so-called "orphan" works, or material for which the owner can't be found. Currently, if Kahle or other Web companies post such material, but the owner later steps forward and sues, the companies can't defend themselves on the grounds that they couldn't locate the owner. Kahle, represented by the Center for Internet and Society at Stanford, had hoped to change that by arguing that the law protecting orphan works--passed before widespread Internet access--violated the First Amendment.
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This was a foregone conclusion, because Kahle's (and his lawyers' — he was unusually involved in the litigation) strategy was basically to assert that "You guys got it wrong a couple of years ago in Eldred, so we're going to pretend that you haven't decided this question yet." That's not a winning strategy.
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