Well, I would love to hear about a circuit court case that says otherwise. Seriously, I have no idea, but I do not believe such exists.

Basically it's not the law yet and may never be the law.

Uhh. No. At least under any interpretation I know about what the law "is."

It's neither express in the statute nor is it in case law binding on any court, because while CAFC decisions are nationally binding, that is only on the subject matter uniquely assigned to the CAFC, but that doesn't include copyright. Those are claims the CAFC decided under 9th Circuit case law in a case that is in its jurisdiction because it once had patent claims, even though those claims aren't active. Had the actual 9th Circuit ruled this way, it would be 9th Circuit case law, but the CAFC applying (notionally) 9th Circuit case law doesn't create new 9th Circuit case law. It doesn't even create precedent binding on future CAFC panels, even if those panels are themselves applying 9th Circuit case law. It is at most persuasive authority, rather than binding authority, in any future case, so it is only “law” in the sense that, e.g., scholarly treatises on the law are “law”.

So, barring this case being both heard and affirmed by the Supreme Court, this interpretation of copyright law, while potentially decisive in the outcome of the present case, isn't, substantially, law, so much as an idea of what the law might be.