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Court Finds Part of Copyright Act Unconstitutional 240

Posted by timothy
from the small-favors dept.
I Don't Believe in Imaginary Property writes "A US District Court in the Southern District of California has found the Copyright Remedy Clarification Act to be unconstitutional. That act is what removes the sovereign immunity for infringement that state workers have in their official capacity, something many argued would jeopardize universities with liability for faculty infringement, not to mention other state agencies. In a rather dense legal ruling (PDF), the Court found that the Clarification Act was not a valid exercise of congressional power under the 14th Amendment. For those of you who have absolutely no idea what I just said, I recommend either being glad that a small piece of copyright law may soon bite the dust, or hoping that NYCL will explain this better."
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Court Finds Part of Copyright Act Unconstitutional

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  • what it means? You should have submitted it to "Ask Slashdot".
    • Re: (Score:3, Funny)

      by alx5000 (896642)
      Mmmmmm maybe you misunderstood, and he was actually referring to some other clarification source [wikipedia.org]...
    • Nice one Ray ....
    • by wanax (46819)
      Should you *know*? No. But as our resident high profile copyright lawyer, who's enlisting our help against the RIAA, I would certainly appreciate it if you offered an educated opinion...

      And besides, what's Ask Slashdot going to get besides a whole bunch of IANAL preceded rants in this type of submission?
      • And besides, what's Ask Slashdot going to get besides a whole bunch of IANAL preceded rants in this type of submission?

        You never know ... some of the real lawyers on Slashdot may come out and comment on it.

      • "But as our resident high profile copyright lawyer..." In case you haven't been watching Ray's blog, it has been a VERY busy week, and he has evidently been doing not only the typical lawyer hours, but keeping up with a dozen or so RIAA cases, answering emails, and saving western civilization from what appears to be an increasingly out of control Richard Gabriel. Let him have Sunday evening off.
        • But as our resident high profile copyright lawyer..." In case you haven't been watching Ray's blog, it has been a VERY busy week, and he has evidently been doing not only the typical lawyer hours, but keeping up with a dozen or so RIAA cases, answering emails, and saving western civilization from what appears to be an increasingly out of control Richard Gabriel. Let him have Sunday evening off.
          Thanks, rozthepimp. Technically it's Monday morning so I guess I'm back. There are plenty of things in western "civilization" I could live without, but one of the really good things is the constitution, so let me take a whack at simplifying/oversimplifying :
          the Constitution is our supreme law;
          any statute that conflicts with the Constitution is invalid;
          the 11th amendment to the Constitution says you can't go into federal court to sue a State, states are immune;
          the 14th amendment creates an exception to the 11th because it says if a State is systematically depriving some people of their rights (as, e.g., denying people's right to an equal education because of their race) then you can go into federal court to sue a State;
          a statute which authorizes people to go into federal court to sue a State must therefore be based on the 14th amendment;
          because this statute (authorizing copyright suits against states) was not based on the 14th amendment -- i.e. not based on systematic deprivation of some people's rights -- then it's an invalid statute.

          It's really such a simple proposition, they probably knew it was unconstitutional when they enacted it, but did it anyway to placate some big contributors and lobbyists from the RIAA/MPAA crowd.
          • by rossz (67331) <ogre AT geekbiker DOT net> on Monday April 21, 2008 @03:18AM (#23139592) Homepage Journal

            they probably knew it was unconstitutional when they enacted it


            This happens way too often. The damage caused by these unconstitutional laws can be enormous since our courts (by design?) are rather slow in reacting most of the time.

            Speaking of the government ignoring the Constitution, I got halfway through "Constitution Chaos" by Judge Napolitano. I had to stop reading it as the thought "rope, tree, politician - some assembly required" kept going through my mind. I'll try to finish reading it after I lock up all the firearms and hide the key.
          • Re: (Score:2, Offtopic)

            by alshithead (981606)
            I'm way off topic here but I have to say it...

            Ray, I always appreciate your input on Slashdot stories that delve into the legal arena.

            Please accept my heartfelt thanks.

            al
    • What's the difference between a country lawyer and a rural juror? The urban fervor?
      • by mi (197448)

        What's the difference between a country lawyer and a rural juror? The urban fervor?

        And then ask about the difference between a government-owned University and a private one... The submitter seems to believe, the former ones deserve special immunity...

  • by QuantumG (50515) * <qg@biodome.org> on Sunday April 20, 2008 @09:24PM (#23138046) Homepage Journal
    was passed with the intent to subject States to liability for copyright infringement. The CRCA amended 17 U.S.C. 511(a):

            Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State [...] shall not be immune, under the Eleventh Amendment [...] from suite in Federal Court [...] for a violation of any of the exclusive rights of a copyright owner.

    So this ruling basically says you can't sue the state for violating your copyright.
  • Dog Bites Man! (Score:2, Insightful)

    by russotto (537200)
    And government decides it doesn't have to follow the laws. What next, candidate kisses baby, sun rises in East?
    • You don't see too much of that these days.
    • Re: (Score:3, Funny)

      by Z34107 (925136)

      Congress exempts itself from a lot of laws - link [house.gov]. Although the house.gov site puts a positive spin on this (news at 11), they're exempt from minimum wage, OSHA, the Freedom Of Information Act (FOIA), and a lot of other ones.

      Funny, isn't it? Congress is exempt from nearly all provisions of the "Ethics in Government Act of 1978."

  • by egburr (141740) on Sunday April 20, 2008 @09:42PM (#23138166) Homepage
    The first article linked to sounds to me like if a state employee violates copyright as part of his job, the state can't be sued but will fire the employee who can *then* be sued. Sucks to be that employee...
    • IANAL, but (Score:3, Insightful)

      by Moraelin (679338)
      IANAL, but I think that "as part of his job" or "in their official capacity" don't actually mean "DMV clerk who managed to install BitTorrent on his work PC and downloaded/redistributed every single new movie". I can't even imagine what kind of an official job would involve breaking copyright law, as part of the job description. Maybe a cop investigating a counterfeit DVD operation, but that's just about it.

      At any rate, it seems to me that whether they fire you or not is kinda irrelevant. They can't sue you
  • by Compulawyer (318018) on Sunday April 20, 2008 @09:46PM (#23138184)
    Ok ... here goes ...

    The USA is a conglomerate of separate and independent governments. Each state has its own government that co-exists with the federal government. The federal government is a government of limited powers. It has only the powers that the states gave it when those states ratified the Constitution. The 11th Amendment to the Constitution specifies that states cannot be compelled to defend suits in federal courts.

    States, as independent sovereigns with their own governments, enjoy sovereign immunity. No one can take legal action against a sovereign unless the sovereign gives permission to do so. Various Tort Claims acts allow those injured by states to sue the states to recover damages.

    The US Constitution was amended in the 19th century to include the 14th Amendment as a response to slavery and its vestiges. Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery. Title VII of the Civil Rights Act of 1964 was enacted using Congress's powers under the 14th Amendment.

    Therefore, what I presume the Court's ruling held is that Congress could not abrogate sovereign immunity of the states for copyright infringement because such infringement is not one of the vestiges of slavery. Also, I suspect that there is probably some discussion of states' immunity from suit in federal courts for copyright infringement. Since copyright infringement is a claim that can only be brought in federal court, you can see how a state could infringe at will by refusing to permit itself to be sued in federal court on a claim that is impossible to bring instate courts.

    • by belmolis (702863)

      There is no discussion of whether copyright infringment is a vestige of slavery in the opinion. Rather, the court holds that there is no evidence of a pattern of copyright infringement by the states which would justify abrogation of state sovereign immunity.

      I think that you're wrong about the "vestige of slavery" bit. It is true that the purpose of the Fourteenth Amendment was to give full civil rights to former slaves, but what amendment actually does is to extend to the states certain restrictions pre

      • I've now read the opinion. I may be confusing the rationale for enactment of the Civil Rights Act with the rationale for the 14th Amendment. However, the case does hold that the enforcement clause of the 14th Amendment does not permit Congress to abrogate sovereign immunity for copyright claims - at least on the scant legislative history of the act.
      • by drawfour (791912)

        For example, the denial of the vote to women is not a vestige of slavery since at the time of the passage of the 14th Amendment free women did not have the vote. However, I am sure that the Supreme Court would overturn a state statute denying the vote to women on the grounds that it violates the Equal Protection clause, which is extended to the states by the 14th amendment.

        Or maybe they would just go with the 19th amendment [wikipedia.org].

      • Re: (Score:3, Informative)

        by Goobermunch (771199)
        The trick here is that over the past 15 years, the Supreme Court has been cutting back on Congress' ability to meddle in the affairs of the States. One way that has been done is strictly applying the Constitution's rules for when Congress can act. Formerly, one of Congress' favorite tricks was to use its power to regulate commerce between the states to impact anything that had moved or could move in interstate commerce. The Supreme Court trimmed that back by actually requiring the regulated behavior be c
        • Re: (Score:3, Insightful)

          by Curunir_wolf (588405)

          Nevertheless, I'm not sure that the statute is necessary to reach the desired goal. The 5th amendment prohibits the state from taking property without due compensation. It has been incorporated through the 14th Amendment to apply to State governments. If the state is taking your IP, I would think that you'd have a cause of action for a violation of the 5th. And fortunately, you don't need Congressional permission to sue your state for violating your constitutional rights.

          No, that's not possible, and for good reason. IP is not considered "property" in that context, nor should it ever be. The term "Intellectual Property" is just a catch-all phrase to describe the various exclusive rights granted under Copyright, Patent, and Trademark law. It's not actual property, and if you read the decision closely, you'll see that the court recognizes that (as it must), and clearly defines the rights the plaintiffs are claiming as an exclusive right granted by copyright, having nothi

    • by KutuluWare (791333) <kutuluNO@SPAMkutulu.org> on Sunday April 20, 2008 @10:59PM (#23138522) Homepage

      Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery.

      While that was the purpose of the 14th Amendment at the time, it actually has much broader powers than merely abolishing slavery. Amendment XIV intentionally mimics the language of Amendment V, in that it forbids the states from "depriv[ing] any person of life, liberty, or property, without due process of law;". This Amendment is the reason that the freedoms express in various constitutional amendments are now applied to the states, despite clearly being directed toward Congress, e.g., the federal government, and not the states.


      In this case, Congress attempted to apply that standard to copyright law, by claiming that violation of copyright deprived the copyright holder of "property", and because of the states' normal immunity to federal suit, did so "without due process". In order for this law to pass Contitutional muster, it must fall clearly within the scope of that 14th amendment clause, for the reason you mentioned: if no constitutional amendment expressly grants Congress the power to override the 11th Amendment, Article I forbids them from doing so.


      What the court found, based on earlier decisions, was that this particular law did not meet the strict test for determining if it fell legally within the 14th Amendment. Read in isolation that Amendment does seem to cover this particular action, but the Constitution cannot be read in isolation. In order to balance Amendment XIV with Amendment XI, the courts impose limits on how free Congress can get with its 14th Amendment powers, which are similar to the limits the Court places on Congress's attempts to limit First Amendment rights. Specifically, the law in question must be designed to address a specific infringment in the most specific and limited means possible. Since the Copyright Remedy Clarification Act was essentially preemptive (the Court didn't find the "evidence" used to support the act as being very consistant), and because there are other remedies for the copyright holder (individual suits; breach of contract suits; etc), the Court found that Congress overstepped their bounds with this act.



      • Re: (Score:2, Insightful)

        by OMNIpotusCOM (1230884) *
        And this is why I simply adore Slashdot. One week you've got people discussing different parts of astro physics using nouns that have people's names in front of them, then you got an article for some dumbass who dressed up as a Wii remote and called himself a superhero, and then you get articles like this, where people throw words around that I can pretend I understand and say things like, "Oh, that's interesting," and, "I never thought of it that way before."
      • Re: (Score:3, Informative)

        by Compulawyer (318018)
        Generally I agree with everything you said. However, you should note one thing: Copyright suits can only be brought in federal court. If a state has immunity from suit in federal court under the 11th Amendment and does not waive that immunity, then copyright holders as a group are left without any remedy if a state infringes on their copyrighted work. In this particular case, the copyright holder had other causes of action based on the business transaction with the state, but generic copyright infringem
    • Specifically, the 14th Amendment makes the Bill of Rights (the 1st 10 amendments to the Constitution) specifically applicable to the states and allows the federal government to create legislation that abrogates sovereign immunity of the states if, and to the extent, necessary to abolish the vestiges of slavery.
      Actually, not all of the first 10 Amendments have been incorporated. The Seventh Amendment has not been.
  • Don't pop the cork on that bubbly yet. This may not survive an appeal. Even if the nutty 9th upheld this one, the SCOTUS would definitely want to take a stab at it as well (and they would almost certainly reverse this).

    Why would you want this anyway? Do you really want the government to have the right to steal your work?

    Go ahead... flame me. I think that Intellectual Property rights are important.
    • by Compulawyer (318018) on Sunday April 20, 2008 @10:05PM (#23138288)
      The "Nutty Ninth" is actually one of the leading circuits for copyright law along with the 2nd Circuit. The opinion is a district court opinion and cites to a 5th Circuit opinion holding the same way. It also cites to other decisions with similar holdings for the analogous statutes in the patent and trademark areas.

      I know as a law student you probably know more law than I do, but as a practicing IP lawyer, I have to disagree with you. I don't think a petition for certiorari would be granted and if it was, I think the decision of the trial court would be upheld.

      • by Uart (29577)
        I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue.

        After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either.

        The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state.

        The necessary and proper clause, however would apply to Congre
        • by Uart (29577)
          Eh... ignore most of that... apparently state courts don't have subject matter jurisdiction to hear federal copyright claims (unless it arises as a counterclaim, which would be unlikely).

          Still, the law wouldn't be unconstitutional, per se, just entirely unenforceable.
        • Re: (Score:3, Informative)

          by Compulawyer (318018)

          I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue.

          There is no issue to resolve. So far as I have seen, the decisions are unanimous in finding this act an unconstitutional exercise is legislation. There is no circuit split to resolve. IMHO, I don't see this case as one for a grant of cert.

          After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either.

          Nothing in court is a slam dunk.

          The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state.

          That's right, it does.

          The necessary and proper clause, however would apply to Congress' power to "promote the progress of science and useful arts," and potentially allow this law to apply to states, regardless of their sovereign immunity. I suppose you could also make a claim involving the commerce clause there...

          Note that other courts have come to the same result for "clarification acts" involving patents and trademarks too. There is a marked difference between giving Congress power to legislate in an area and compellin

    • I believe in you! Here - have my flame retardant cloak!
    • Re: (Score:3, Interesting)

      The government already _does_. It's called Eminent Domain.

      Back during the Anthrax scare, the government nearly seized Bayer's patent on Cipro under Eminent Domain.

      And as someone who despises both states' "rights" and intellectual "property" with a bloody passion, I'm quite torn on this. I hate anything that protects states' "rights", but I love anything that degrades copy"right".
    • by timmarhy (659436)
      No one here will argue that having a good idea and being allowed the chance to profit from that idea is wrong.

      the primary problem most of us have is that copyright terms are not in the public interest, which is the whole reason copyrights and patents are given in the first place - a government granted monopoly in exchange to that work or invention passing into the public domain.

    • > Why would you want this anyway? Do you really want the government to have the right to steal your work?

      It's not that simple. They CAN still sue the individual responsible, per my understanding (IANAL, but it's discussed in TFA).

      They just can't get lots of money from the state, now. They also appear to have been trying to copyright mere ideas, but that's another can of worms.

      So, IMHO, it's a good ruling and good law, because it's not like the states have been authorizing infringement to begin with, an
      • by Uart (29577)
        They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.
        • > They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.

          Yes, but the minute you do something illegal, you're outside your official capacity, so by infringing, they give up their immunity due to their position. So we're right back to "you can sue the person, but not the state" again.

          The article discusses that exact point, but I don't blame anyone for missing it :] IANAL, and this is a complicated mess, but that's one of the few things
          • >Yes, but the minute you do something illegal, you're outside your official capacity.

            Not necessarily. It all gets right at whether or not the state has vicarious liability. Except, unlike in private vicarious liability suits, you can't sue the employee unless the employer (the state) is not able to be reached by vicarious liability.

            You can definitely commit an illegal act in the course of your official duties. Think about a bouncer kicking someone out of a bar... if his boss says, "rough him up a little,
    • Why would you want this anyway? Do you really want the government to have the right to steal your work?

      I don't want anyone to have the right to steal my work. I'd like to keep it available for my use and my purposes, to have any time I like. Stealing it would really irritate me a lot, because if it was stolen I wouldn't have it any more. Why, if it was a song and it was stolen I wouldn't be able to listen to it! If someone stole my movie, I wouldn't be able to watch it! Worst of all, if someone stole my bo

    • Re: (Score:3, Interesting)

      by bzipitidoo (647217)

      Here we go again with that word "steal". You only have these artificial rights to work you do because of government fiat, justified under a lot of shaky assumptions. Some of these being that ideas are discrete and clearly delineable, that you alone could have come up with some idea, that you owe nothing to society for educating you and placing at your disposal libraries of prior art to help you avoid "reinventing the wheel", and that you are able to make use of this government granted monopoly, and only f

  • by CajunArson (465943) on Sunday April 20, 2008 @10:01PM (#23138272) Journal
    OK: I'm a 2L at a law school ranked in the US snooze & world reports top 20. But more importantly I'm in Fed Courts and have my final in less than 2 weeks. This case has NOTHING to do with copyrights whatsoever. It instead involves an insanely complex topic called "state sovereign immunity". What I am about to say is hopefully accurate, but is by no mean a deep analysis of sovereign immunity doctrine. Many scholars actually think (and I agree) that the Supreme Court has massively overconstitutionalized Sovereign Immunity doctrine and that it should be much more rooted in common law which would allow Congress more flexilibility in abrogating it in some circumstances. Before going any further: This ONLY applies to dragging a state into a FEDERAL court, the state court systems have their own sovereign immunity that can be different:

    What is state sovereign immunity? An ancient concept that basically says "you can't sue the state unless the state gives you permission to do so". It goes all the way back to the days of Kings, and was imported into the US too. In the Constitution the states have sovereign immunity from 1. a basic "postulate" of the structure of the constitution (this is extremely fuzzy and not well defined) and 2. The 11th amendment which ONLY created sovereign immunity in diversity actions (correcting a blunder put into the original Article III language). Now, there are still plenty of times that you CAN sue a state, the courts have carved out an exception for suing a named state official, and doing so only for future prospective relief (like I want the state to stop harming me, but I can't sue to collect big money from the state).

    So you might say: What about all my rights, can the state get away with everything? The answer is no. It is possible for Congress to (in limited circumstances) abrogate or take away state sovereign immunity. The problem comes from the above "postulates": State sovereign immunity is INHERENT to the Constitution (not just to common law which would be easy for Congress to override with legislation). Think of this in programming terms: In the ORIGINAL base class (constitution) there is no real way for Congress to abrogate sovereign immunity unless there is an express exception in the base class itself. However, when the 14th amendment came along LATER and amended the constitution (think of the constitution as a new inherited class with slightly different properties) it DID give Congress a window to (sometimes) abrogate a State's sovereign immunity.

    To abrogate you need 2 things that the Court in this case found lacking: 1. Congress has to very clearly state in statutory language that it is abrogating state sovereign immunity (not every bill relating to the 14th amendment abrogates, section 1983 of the civil rights act is a notable case); 2. (and this is where the act failed): The right granted has to PROPERLY be rooted in the 14th amendment section 5 grant of power to Congress. This law was not rooted in the 14th amendment even if Congress said it was. The Copryight power has nothing to do with the 14th amendment. There is one exception in the original Constitution that Courts have recognized, and that is the bankruptcy power (which has some funky text associated with it in ARt I), aside from that the Court has basically held that state sovereign immunity could be abrogated for bankruptcy).

    Why have all this sovereign immunity? Well there are good reasons for it, the biggest one being that it would be way too easy to sue the states for petty money in federal courts. It should be no surprise that abrogation came with the 14th amendment which was passed after the Civil War when the trust of the states was at an all time low. Remember: In a federal democracy like the U.S. the states DO have trust and sovereignty, but not absolute sovereignty, and the level of trust they get has gone up & down over the years.

    Now
    • Nice exposition. One further detail: a state can be sued in state court for violation of its own constitution.

    • This case has NOTHING to do with copyrights whatsoever.

      Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a) [cornell.edu]. If not for that twist, the "tort" of copyright infringement would likely fall under most states' Tort Claims acts and authors of copyrightable works would not be left without a remedy for infringement by states (or hoping against hope for a waiver of 11th Amendment immunity).

      Good luck on your Fed Courts exam. I have found that my Fed Courts class was far and away the most valuab

      • by Uart (29577)
        Here is a question for you though... is there constitutional authority for Congress to revoke jurisdiction of state courts?
    • Think of this in programming terms: In the ORIGINAL base class (constitution) there is no real way for Congress to abrogate sovereign immunity unless there is an express exception in the base class itself. However, when the 14th amendment came along LATER and amended the constitution (think of the constitution as a new inherited class with slightly different properties) it DID give Congress a window to (sometimes) abrogate a State's sovereign immunity.

      This would have gone over better if it were a car an

  • by PingXao (153057)
    Why do I get the feeling this is one of those stories where TFA doesn't say what the poster thinks it says? Yep. Confirmed. I knew it before I even read the comments.
    • IANAL, but actually, there is a link between this and the RIAA's war on piracy, though it's a bit thin. To be more exact, had this gone the other way, it could have been a tool in the RIAA's legal arsenal.

      You may not remember, but the RIAA has been after universities (there are plenty of Slashdot stories on that topic). Follow that by the fact that state universities are parts of the state, which are immunized by this ruling. Yes, it appears to allow them to still sue INDIVIDUALS (through more convoluted
  • Granted that certain recent portions of copyright law, like the recent addition mentioned in TFA, and (most definitely) DMCA are outrageous and abusive.

    But that does NOT mean that "copyright law", in general, is bad. It is not. It is essential to the healthy functioning of a free society. In fact, if you read the Constitution, you will see that the abilities to copyright and patent were expressly provided for in order to further the general public good.

    If you read your history, you will see why this i
  • This is old news (Score:4, Informative)

    by nenya (557317) on Sunday April 20, 2008 @11:24PM (#23138648) Homepage
    First of all, this ruling was handed down two months ago, so I'm not sure why it's being discussed now. But second, the Fifth Circuit struck down exactly the same part of the same law in 2000. See Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000). Though it hasn't made it to the Supreme Court and the Fifth Circuit is the only federal appellate court to consider the issue, no court will allow Congress to abrogate state sovereign immunity under its Art. I powers. And Copyright is not a Fourteenth Amendment issue, so there's just no way to do this. This really isn't a big deal.
    • First of all, this ruling was handed down two months ago, so I'm not sure why it's being discussed now. But second, the Fifth Circuit struck down exactly the same part of the same law in 2000. See Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000). Though it hasn't made it to the Supreme Court and the Fifth Circuit is the only federal appellate court to consider the issue, no court will allow Congress to abrogate state sovereign immunity under its Art. I powers. And Copyright is not a Fourteenth Amendment issue, so there's just no way to do this. This really isn't a big deal.

      I agree with you on both counts, nenya.

  • First this is just a motion to dismiss in a district court - talk to me if the 9th Circuit Court of Appeals gets it.

    This opinion is about sovereign immunity, the legal theory that states cannot be sued. For all the Federalists in the room this may be a good deal. For those that would like to see less protection for intellectual property - this isn't your decision.

    Sovereign Immunity has actually created state funded patent trolls. California schools are financially exploiting patent law by patenting tech
  • For those of you who have absolutely no idea what I just said, I recommend either being glad that a small piece of copyright law may soon bite the dust, or hoping that NYCL will explain this better.


    As much as Copyright Law sucks, there are some parts of it that I'd be quite upset if they struck.

    Fair Use to name one. Limited Immunity for ISPs (one of the few or only good things to come out of the DMCA) to name another.
  • by spiritraveller (641174) on Monday April 21, 2008 @12:09AM (#23138878)
    Every law passed by Congress must be authorized by some language in the Constitution. Most of the Copyright Act is authorized by the Copyright Clause, which allows Congress...

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
    The doctrine of Sovereign Immunity does not come from the original text of the Constitution. It comes from an amendment. The 11th Amendment prevents states from being sued for anything that they do not consent to be sued for. If you get hit by a truck driven by a state worker, your state probably allows itself to be sued for that sort of thing. But your state probably does not allow itself to be sued for copyright infringement.

    The Eleventh Amendment gives the states sovereign immunity in absolute terms, and it controls over any Constitutional text that preceded it. Thus, any Congressional power to limit sovereign immunity must come from an amendment that was passed AFTER the Eleventh Amendment. It cannot come from the Copyright Clause.

    Arguably, the only place to look for a Congressional power to limit sovereign immunity is the 14th Amendment, section 5. This text gives Congress the power to enforce the first 4 sections of the 14th Amendment through "appropriate legislation." But any Congressional action that relies on Section 5 must be geared towards enforcing Due Process, Privileges and Immunities, Equal Protection, or some other clause of the 14th Amendment.

    Essentially, the court in this case says that the purpose of the Copyright Act is not to enforce the 14th Amendment. That seems pretty obvious to me. The purpose of the Copyright Act is to enforce the Copyright Clause of the Constitution, not the rights enshrined in the 14th Amendment!

    The only argument that I can think of for the other side would look to the Due Process clause of the 14th Amendment. The 14th requires that states not take a person's life, liberty, or property without due process of law. So the argument would go like this: 1) The state is taking a person's property when it violates someone's copyright. 2) The Copyright Act creates a due process right, in that it requires that the state allow itself to be sued for such a taking. 3) The 14th Amendment authorizes the Copyright Act's limitation on sovereign immunity, because it is an attempt to enforce a Due Process right.

    But there is a fatal flaw in that argument. A violation of copyright is not a taking of property. If you violate someone's copyright, they are still the copyright holder. A copyright violation is NOT a taking of property. Without a taking of life, liberty, or property, Due Process is not required, and the 14th Amendment is not implicated.
  • No, I'm not glad that the tyrannical doctrine of Soverign Immunity [wikipedia.org] is at all dignified, validated, or upheld as a basis for law:

    Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, the king (or queen) can do no wrong.

    Or, like Richard Nixon said [paperlined.org] as an excuse for

"One Architecture, One OS" also translates as "One Egg, One Basket".

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