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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."
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
AntiFA: An abbreviation for Anti First Amendment.
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.
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 - 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.