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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."
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Court Finds Part of Copyright Act Unconstitutional

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  • Dog Bites Man! (Score:2, Insightful)

    by russotto ( 537200 ) on Sunday April 20, 2008 @09:26PM (#23138060) Journal
    And government decides it doesn't have to follow the laws. What next, candidate kisses baby, sun rises in East?
  • by ScrewMaster ( 602015 ) on Sunday April 20, 2008 @09:34PM (#23138112)
    Then again, that's probably the reason why I don't have the same cult following as you do.

    Technically, when people follow someone who they recognize actually knows what he's talking about it's not a cult.
  • by ScrewMaster ( 602015 ) on Sunday April 20, 2008 @09:48PM (#23138208)
    I disagree. A cult is generally a group of people who follow a charismatic leader who has only his own best interests at heart. The followers themselves are usually unable to recognize the fact they're being hoodwinked, or even do much thinking for themselves. That does not in any way describe the people that follow NYCL's writings, or Ray Beckerman himself for that matter.
  • 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
  • by CSMatt ( 1175471 ) on Sunday April 20, 2008 @10:10PM (#23138324)
    This isn't what he meant by "cult following."

    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.
  • by Maestro485 ( 1166937 ) on Sunday April 20, 2008 @11:23PM (#23138640)
    Not quite, it's just that you're defending an IP system that works against you. Fixing inequities in the law is impossible because the law is written by those with much more money and interest than you. I personally think that "IP" should exist to compensate authors for their work, not to make billionaires out of talentless hacks who manipulate those with less cash. It is impossible to "fix inequities" without someone rich getting shafted, which is why it will never happen.
  • by OMNIpotusCOM ( 1230884 ) * on Sunday April 20, 2008 @11:47PM (#23138782) Homepage Journal
    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."
  • by SpeedyDX ( 1014595 ) <speedyphoenix@gmaiTIGERl.com minus cat> on Monday April 21, 2008 @01:36AM (#23139238)
    Actually, my comment was meant to be TOTALLY tongue-in-cheek. I tried to make light of the assumption that the submitter made that NYCL would be aware of, nevermind know and understand in enough detail to explain the intricacies of, the decision. After all, he IS the NEW YORK Country Lawyer, and the case was in a district in Southern California. I'll admit I'm Canadian (studying Criminology) and don't know much about the U.S. legal system, but I was under the impression that District Court decisions, much like Provincial Court decisions in Canada, hold only a slight bearing in another state (or province, in the case of Canada). This would mean that lawyers from out-of-state MAY be aware of the decision, but do not necessarily have to pay it much heed since the decision does not have any binding effect on their state's Courts.

    Evidently, it was a poor choice of language, as nobody got it. Although I hope this reply shed some light for you.
  • by the_raptor ( 652941 ) on Monday April 21, 2008 @01:47AM (#23139300)
    No, this wasn't work-for-hire. Go do some research, it is pretty well documented that the US military did this back in the day. During WII and at the beginning of the Cold War they also pretty frequently took whole businesses using Imminent Domain.

    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)

    by Moraelin ( 679338 ) on Monday April 21, 2008 @03:18AM (#23139598) Journal
    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 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.
  • by TheVelvetFlamebait ( 986083 ) on Monday April 21, 2008 @03:40AM (#23139692) Journal
    Oh, every cult follower thinks their leader knows what they're talking about. In fact, the cults are usually based on some grain of (generally accepted) truth, blown way out of proportion, and the trick is to mix the self-serving BS in with the truth. There's a (generally) false implication that because some of the information is true, all the information thrown in with it is also true.

    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.
  • by karmatic ( 776420 ) on Monday April 21, 2008 @05:53AM (#23140178)
    If I recall correctly, where I live (the Netherlands) copyright law (auteursrecht) also applies to running a program, which is seen as making a copy into computer's memory or something.

    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.

    Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
    (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.


    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.
  • by Curunir_wolf ( 588405 ) on Monday April 21, 2008 @08:19AM (#23140808) Homepage Journal

    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 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.

  • by Chris Burke ( 6130 ) on Monday April 21, 2008 @12:45PM (#23146428) Homepage
    No, it means they _can_ be sued for copyright infringement.
    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.
  • by bzipitidoo ( 647217 ) <bzipitidoo@yahoo.com> on Monday April 21, 2008 @02:06PM (#23147936) Journal

    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.

What ever you want is going to cost a little more than it is worth. -- The Second Law Of Thermodynamics

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