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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.
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'
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 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
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.