Court Finds Part of Copyright Act Unconstitutional 240
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."
Dog Bites Man! (Score:2, Insightful)
Re:How should I know.... (Score:2, Insightful)
Technically, when people follow someone who they recognize actually knows what he's talking about it's not a cult.
Re:How should I know.... (Score:3, Insightful)
This subject is VASTLY more complex than you know (Score:5, Insightful)
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
Re:How should I know.... (Score:2, Insightful)
For example, the film Office Space is considered to have a "cult following." Is Mike Judge a cultist? Of course not. The term just means that the film's popularity is relatively small and usually consists of a niche audience, hence the use of the word "cult." The same definition is being applied in this scenario to NewYorkCountyLawyer and those who follow his posts.
Re:Sovereign Immunity is waivable. (Score:3, Insightful)
Re:Constitutional Law 101 (Score:2, Insightful)
Re:How should I know.... (Score:3, Insightful)
Evidently, it was a poor choice of language, as nobody got it. Although I hope this reply shed some light for you.
Re:Not a good thing? (Score:3, Insightful)
And this is as close as you can get to really stealing IP, because once it is classified the people who came up with it can't even use it themselves.
People think the Military-Industrial Complex is dirty today, it was always dirty.
IANAL, but (Score:3, Insightful)
At any rate, it seems to me that whether they fire you or not is kinda irrelevant. They can't sue you if your job description or assignment was to break copyright law, and they can't sue the state in any case, but that's about it. You can still be sued as a private person, if you broke the law on your own.
Same as, for example, you can't sue the state if a state employee downloads kiddie porn at work, but that employee can still be tried and sent to PMITA prison.
Now they will probably fire the bugger anyway, but that's sorta just the icing on the cake. Even if he kept the state-employed clerk job or whatever, the RIAA can still sue his arse off.
Anyway, on the whole I'm not sure what's to celebrate except as a clarification of the constitution. I suspect that the actual impact of it will range between insignificant to non-existent. As I was saying, there aren't that many jobs which involve unauthorized copying and distribution of copyrighted works. I would assume that any state or federal agencies which do need to copy or distribute (Library Of Congress, maybe?), already have very explicit legal exemptions.
Re:How should I know.... (Score:2, Insightful)
In this case, NewYorkCountryLawyer knows some stuff about the legal system and (I assume) copyright law. His information is generally reliable when he sticks to the facts, which he often does. The problems arise when he starts mixing in a little conjecture of his own, which scores a free ride from the credibility of his verifiable information. Not really enough to be considered a cult, but enough for me to want to question his wisdom.
Re:What the GPL applies to (Score:5, Insightful)
That was the original excuse for the abomination that is the modern EULA (a contract, masquerading as a license, intended to change the terms of sale post sale.) That's why, in the US, we have USC Title 17, Chapter 1, Section 117 [cornell.edu] - Limitations on exclusive rights: Computer programs.
So, if you don't need a license to run the software, or install the software (essential step in the utilization), what's the point of the EULA. After all, there's Adobe vs Softman, where the court found that a single payment for perpetual use constitutes a sale, not a license. If buying the software doesn't get you the right to have it, what did you pay for? If buying the software does give you the right to have it, and copyright law doesn't allow the creator of the software to prevent your using it, then what's the point of the EULA in the first place? When you buy a book, it has a copyright notice, but no license. None is necessary - your purchase gives you a right to use it. Anything else would be silly.
Now, there is a specific case where they are useful, and make sense. A true license (not the modern bastardization) only grants freedoms, but can do so according to terms. Ultimately, it's not the license that takes your ability to do things away, but the law itself. Here's an example:
I make a piece of sheet music. Copyright law states that you cannot distribute copies you make of said music.
Suppose I attach a license to it stating that "you are permitted to make and distribute copies, provided the copyright notice and this notice remain intact". This grants freedoms ("make and distribute copies"), subject to terms ("the copyright notice and this notice remain intact.") You aren't required to accept the license - you can use the sheet music just fine without a license. Should you choose to avail yourself of the additional freedoms I grant you with my work, you may do so (subject to terms).
So, for software, it makes sense to have a license when the author wishes to expand the user's rights beyond that provided by the Doctrine of First Sale, Fair Use, etc. He could, for example, permit the use on a second machine (a laptop perhaps), etc.
Re:Constitutional Law 101 (Score:3, Insightful)
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 nothing to do with "property" as defined by the constitution and common law.
That's the problem with that "Intellectual Property" term. By including "property" in the term, people try to make all kinds of tortured analogies to theft, and property rights. But you can't... IP is not property.
Re:Copyright Remedy Clarification Act (Score:3, Insightful)
The court held that the Congress exceeded its authority under the Constitution to exempt government entities from litigation under the copyright act.
No, genius, that "shall not be immune" line came from the law that Congress passed, which tried to remove the state's immunity from litigation from the 11th Amendment. Congress wasn't exempting government entities from litigation, they were trying to enable it.
The Court ruled this Unconstitutional, so now the immunity the states enjoyed before remains in force.
Re:Sovereign Immunity is waivable. (Score:3, Insightful)
False equivalence. I had hoped for some real argument, not this. I'm saying there are fundamental differences between real property, such as my house, and intellectual property, such as any patentable ideas I may have.
Some differences are that I can stop you from attempting to move into my house without my permission. If you try it, I'll know. If you attempt to force your way in, I, being present, could resort to force to keep you out. I could possibly even handle this without running to the government. In this case, the laws simply endorse reality. Also, the house has finite space. Even if I wanted to, the house could not hold more than a handful of people.
None of that applies to ideas I think up. I might never know that others got ideas or inspiration from something to do with me, or that many others had the same ideas independent of me. If I did know of it, I probably could not resort to force to stop or extract payment even if I was of a mind to do so. I might not even be able to find the "offender". The only way to force the issue is to drag the government into the dispute, and even there the options are limited. Other than ridiculously drastic measures such as execution, severe blows to the head, or sci-fi medical intervention, nothing has the power to force a person to forget an idea. Here the laws are contrary to reality, attempting to create and uphold a system that simply does not make sense. It does not make sense to treat an unlimited thing as if it was a scarce resource. Unlike houses, ideas are of infinite capacity. Everyone could know some idea without in any way depriving me of the knowledge of that idea.