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Court Finds Part of Copyright Act Unconstitutional
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."
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.
How we know is more important than what we know.
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.
Laws affecting technology will always be bad until enough techies become lawyers.
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.
Laws affecting technology will always be bad until enough techies become lawyers.
The 'cult' part in this well known phrase simply means that the followers are fairly limited in number, but very devout. Not that they are brainwashed. For example Another common use of the word cult is in film: for example the Blues Brothers is known as a 'cult classic', though it has nothing whatsoever to do with cults. Apart from possibly those Nazi dudes.
which is totally what she said
Love me then ... and scroll down for my explanation.
Laws affecting technology will always be bad until enough techies become lawyers.
that's the 13th amendment. 14th amendment deals with Due Process and Equal Protection.
Passed so that states had to provide due process and equal protection to the newly freed slaves (as well as others).
Linux doesn't have an EULA. The GPL only applies to _copies_ of the software that you might make (including derivative works, which fall under the jurisdiction of copyright anyways), not how you use the software once you have it.
File under 'M' for 'Manic ranting'
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.
If the original designer was on contract to the for the design work, i.e. CR&D, then the government owns that design, and technically can take it anywhere it wants. If it was IR&D then it would be stealing IP.
No one got beat up more often than the mimes of the old west!
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.
> The 11th Amendment just says that you can't sue a State in Federal court.
True. It's the part where copyright claims have to be filed in federal court (see 28 U.S.C. sec. 1338(a) -- citation taken from Compulawyer's post) that really complicates things.
Not to mention a few other rulings cited in the decision.
I don't think you understand how making claims works (usually, one is obligated to support them, not challenge whoever challenges your assertions).
And when you say "Since you chose to challenge the claim, it is up to you to find a counterexample." I'm sorely tempted to post an ironic reply in the vein of "Anyone who says that loses the argument (it's up to you to provide a counterexample if you disagree)."
But don't get me wrong, I think that copyright is the wrong way to do the right thing, if that makes any sense. I just don't like that method of reasoning.
However, instead I would like to point to the Renaissance. It pretty well predates any real notion of copyright, and last I checked, those countries that participated did not all fall into ruin. But I suppose you'll merely tell me that most later adopted copyright?
Anyhow, I have a stone for you. It keeps tigers away...
No portion of the GPL applies to how end users must use the software. Ever. Parts 15 and 16 of GPL3 disclaim any implied warranty on the software or liability of the authors for any consequences that arise from how the software is used, but it does not make a requirement that the end users use the software in a certain way.
File under 'M' for 'Manic ranting'
The GPL states in its text that you don't have to accept it to use the software, so it's impossible for it to apply to anything beyond the bounds of copyright law.
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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.
Ray Beckerman +5 Insightful
> I do not think YOU understand. This is not a debate, it is a conversation. I do not recall having signed anything that obligates me to defend my every comment to every poster who does not like what I say.
You may misunderstand. I understand wanting to have the other party "pony up" before you argue with them, so that you don't end up in a hit-and-run where you do a lot of work refuting them and they do none. But I don't think it worthless to be careful with one's words, and the notion that someone asking about your support for your propositions has to provide counter-examples and means of undermining them first is... not conductive to a good conversation, let alone a debate. It's just not good to throw out what seems like a clear fallacy like that (even unintentionally, due to being less than clear about your intent). You undermine the very idea you intend to support if you do, whether in conversation, debate, or anything else!
> Arts and invention were anything but "public domain" during the Renaissance. Artisans and inventors were supported by the wealthy and powerful, who kept the benefits for themselves. It only "trickled down" to the general populace at the whims of those same wealthy and powerful.
And yet, it did trickle down, did it not? I'm arguing more against the extreme notion that without copyright there is nothing worthwhile. Now, there's a good point here that the patronage model is not the greatest thing of all. However, it does support the notion that there are workable (if not superior) models that encourage innovation other than copyrights. But I see that you're arguing that copyright is the most effective we have so far. I think that's a reasonable point, if tempered by the notion that we should get rid of many of the excesses in the current model. For example, I think it's reasonable to say that Google has been innovative, but how many of its services have NOT been sued in some way? Book search, in particular, comes to mind. I really think publishers were shooting themselves in the foot trying to stop that one. So I hope we can agree that copyright (as it exists today, in the US) is at least not the best possible.
> If you want an actual example of the opposite, a place and time in which "intellectual property" automatically belonged in full to "the people", you need look no further than the former Soviet Union. And if you know much about their history, you know that this system simply did not work. In fact, all innovation ended up being controlled by the government and the military, while "the people", the ostensible owners of all the above, continually teetered on the brink of starvation and economic collapse.
I wouldn't blame the fall of the Soviet Union on copyright. I know you're not, but it sounds like it. With socialism, the inherent problem is quite often there isn't enough for everybody. Now, yes, there's a lack of incentive problem, too, but I think all those problems contribute. At least with copyright, there IS enough for everybody. I mean, that's why they're worried about piracy to begin with: too many people are copying it. They wouldn't be able to copy it if there wasn't enough to go around (and copies both legal and otherwise do, to be fair, use limited resources: disk space and bandwidth, in particular).
> Another place that does not officially recognize "intellectual property" to any degree is China. But you might notice something about their admittedly booming economy in recent years: they have been great at copying the inventions of others but really, really lousy at coming up with anything new of their own. Why? Because there is economic incentive to copy the work of others cheaply, but little or no economic incentive to innovate. There is no profit in it so people don't do it. This is not just real but obvious to those who have been paying attention.
You know, they said that about Japan not very long ago, too. In fact, Japanese goods once had a reputation for being inferior knock-offs that
Napolitano works for FOX News as a commentator. FOX News is a right-wing puppet news organization. Therefore Napolitano's book is also part of the right-wing conspiracy. I will not read it.
(I say with sarcasm, what many people would say with all seriousness. They display prejudice rather than open-mindedness.)
The government is not your daddy. Its purpose is not to raid middle-class neighbors' wallets and give it to you.
Laws affecting technology will always be bad until enough techies become lawyers.