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."

Comments

he's fired, then sued

[egburr]

The first article linked to sounds to me like if a state employee violates copyright as part of his job, the state can't be sued but will fire the employee who can *then* be sued. Sucks to be that employee...

Sovereign Immunity is waivable.

[Uart]

Don't pop the cork on that bubbly yet. This may not survive an appeal. Even if the nutty 9th upheld this one, the SCOTUS would definitely want to take a stab at it as well (and they would almost certainly reverse this).

Why would you want this anyway? Do you really want the government to have the right to steal your work?

Go ahead... flame me. I think that Intellectual Property rights are important.

Re:Sovereign Immunity is waivable.

[Quattro Vezina]

The government already _does_. It's called Eminent Domain.

Back during the Anthrax scare, the government nearly seized Bayer's patent on Cipro under Eminent Domain.

And as someone who despises both states' "rights" and intellectual "property" with a bloody passion, I'm quite torn on this. I hate anything that protects states' "rights", but I love anything that degrades copy"right".

Re:Sovereign Immunity is waivable.

[bzipitidoo]

Here we go again with that word "steal". You only have these artificial rights to work you do because of government fiat, justified under a lot of shaky assumptions. Some of these being that ideas are discrete and clearly delineable, that you alone could have come up with some idea, that you owe nothing to society for educating you and placing at your disposal libraries of prior art to help you avoid "reinventing the wheel", and that you are able to make use of this government granted monopoly, and only for the intended ends.

I want my government to be able to function on my behalf, and not be hamstrung by self inflicted Intellectual Property idiocy. (Though if obeying the restrictions would motivate them to fix IP...) For instance, one thing Massachusetts doesn't have to worry about in any decision to use an open standard such as ODF, is that some MS puppet patent troll will pop up and sue the state for licensing fees or some such, rather like SCO attempted in shaking down Linux users for $699 each.

In what way are IP rights important? I grant you they certainly are something that must be kept in mind, same as nuclear arsenals must be kept in mind. Why do you think IP rights are important?

Re:Not a good thing?

[ScrewMaster]

The way I read this (and I'm a lawyer) through official action, a state can now, willy-nilly, appropriate intellectual property with immunity.

Yeah, that doesn't sound good at all, although it's one of those things that may cost them more in the long run.

Besides, the military has been doing that forever. My father worked on a number of major contracts for the Navy and Air Force back in the sixties, and anything they decided they liked and wanted to have built cheaper elsewhere they would just stamp "CLASSIFIED".

Once that was done, the original manufacturer/designer/inventor was basically screwed out of his rights (patents, copyrights, whatever) and couldn't even take it to court. After that happened to Dad a couple of times, he made damn sure that the patent apps and design specs left out crucial elements such that they'd eventually have to come back and buy it from his company. That, or invest a whole lot of time and money figuring out what he hadn't told them. They deserved it though: the Navy severely shafted his company on a number of contracts. Just outright stole years of work, and put them out on open bid ("classified", yeah, right.) Sleazy, and not what most people would expect from the service. A used car salesman, sure, but not from the world's most powerful military.

Re:This subject is VASTLY more complex than you kn

[belmolis]

Nice exposition. One further detail: a state can be sued in state court for violation of its own constitution.

Re:This subject is VASTLY more complex than you kn

[Compulawyer]

This case has NOTHING to do with copyrights whatsoever.

Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a). If not for that twist, the "tort" of copyright infringement would likely fall under most states' Tort Claims acts and authors of copyrightable works would not be left without a remedy for infringement by states (or hoping against hope for a waiver of 11th Amendment immunity).

Good luck on your Fed Courts exam. I have found that my Fed Courts class was far and away the most valuable class I took in law school. And by the way -- everyone knows there are 25 law schools in the top 20.

Re:Constitutional Law 101

[KutuluWare]

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.

While that was the purpose of the 14th Amendment at the time, it actually has much broader powers than merely abolishing slavery. Amendment XIV intentionally mimics the language of Amendment V, in that it forbids the states from "depriv[ing] any person of life, liberty, or property, without due process of law;". This Amendment is the reason that the freedoms express in various constitutional amendments are now applied to the states, despite clearly being directed toward Congress, e.g., the federal government, and not the states.

In this case, Congress attempted to apply that standard to copyright law, by claiming that violation of copyright deprived the copyright holder of "property", and because of the states' normal immunity to federal suit, did so "without due process". In order for this law to pass Contitutional muster, it must fall clearly within the scope of that 14th amendment clause, for the reason you mentioned: if no constitutional amendment expressly grants Congress the power to override the 11th Amendment, Article I forbids them from doing so.

What the court found, based on earlier decisions, was that this particular law did not meet the strict test for determining if it fell legally within the 14th Amendment. Read in isolation that Amendment does seem to cover this particular action, but the Constitution cannot be read in isolation. In order to balance Amendment XIV with Amendment XI, the courts impose limits on how free Congress can get with its 14th Amendment powers, which are similar to the limits the Court places on Congress's attempts to limit First Amendment rights. Specifically, the law in question must be designed to address a specific infringment in the most specific and limited means possible. Since the Copyright Remedy Clarification Act was essentially preemptive (the Court didn't find the "evidence" used to support the act as being very consistant), and because there are other remedies for the copyright holder (individual suits; breach of contract suits; etc), the Court found that Congress overstepped their bounds with this act.

Re:Constitutional Law 101

[Phroggy]

No, but it means they'll try to bust doctors who prescribe lethal drugs to terminally ill patients in a state that has legalized this practice.

Oregon voters (not the legislature, it was actually voted on by the people) passed a law legalizing doctor-assisted suicide under limited circumstances and with strict controls to make sure it's not used inappropriately. Actually, I think either the legislature figured out a way to override it or the state Supreme Court found it unconstitutional (I don't recall which), so a modified version went back to the voters and the voters approved it again. Anyway, then-Attorney General John Ashcroft instructed the DEA to bust doctors who prescribed these drugs, because the drugs have no legitimate medical purpose and are therefore not legal, according to him. It went to the US Supreme Court, which upheld the state's rights.

By the way, some of the restrictions on the "Death With Dignity Act", not relevant to the above but just in case anybody's wondering:

• You must be terminally ill, i.e. you're going to die soon of natural causes anyway
  
• You must request a lethal drug from a doctor
  
• You must wait at least one or two weeks (I forget) after you have made this request
  
• You must then make the request again
  
• Only then can a doctor prescribe the drug, which you are given to take home with you (it is NOT administered by the doctor)
  
• Once you have the drug, it's your decision whether or not to take it

Re:Ray's busy - cut him some slack

[rossz]

they probably knew it was unconstitutional when they enacted it

This happens way too often. The damage caused by these unconstitutional laws can be enormous since our courts (by design?) are rather slow in reacting most of the time.

Speaking of the government ignoring the Constitution, I got halfway through "Constitution Chaos" by Judge Napolitano. I had to stop reading it as the thought "rope, tree, politician - some assembly required" kept going through my mind. I'll try to finish reading it after I lock up all the firearms and hide the key.

Re:This subject is VASTLY more complex than you kn

[WNight]

The problem is that we don't optimize properly. Treat law like a living program - one that has been hacked multiple times since deployment. You can't expect it to be the most elegant code anymore. So you write tests of the current behavior and start refactoring the code till it looks/works better.

Anti-gun/weapon laws. Why so many complications?

Any device for the sole or usual use of severely injuring or killing a person should be regulated in manner X, this includes but isn't limited to guns, tazers, spring knives.

Then, based on what kind of weapons we want to have, we include them based on function.

I think it'd be possible to get gun laws down to a page or two. How big does the logic tree really need to be?

I think part of the problem is that we write insanely complex laws, as if we expect that our limited viewpoint now is going to enable us to cover every possible contingency in the future. Anyways, the outcome is modified by everything from the judge's mood, and precedent, to the phase of the moon, which renders the whole thing moot more often than not.

In programming terms, the legal system as a whole, would be/suffer from:

0) putting in way too much up-front design
1) unaudited except by black-hats - fixed only in response to blatant failure
2) deploying changes to a live system
3) working without a test suit to guide implementation
4) waterfall methodology - idea -> law - through linear set of phases
5) no user stories, only seagull managers (lobbyists)
6) no follow-up studies, or metrics, no research into quality of results
7) failure to encapsulate design - inability to inherit cleanly
8) unclear naming terminology, obsolete technical references
9) Not-Invented-Here syndrome - each statute rewrites the wheel

just to name a few issues.


spec Murder
    should "punish those who kill others"
        a = Person.new 'Able' ; c = Person.new 'Cain'
        c.murder a
        c.guilt.should be_true

    should "not count for cases of self defense"

    should "catch murder of, and by aliens" ...
        c.murder Person.new('Jar Jar')
        c.guilt.should be_true # unfortunately

    should "reduce effects of violent crime on populations"
        simulate ...
        test_population_with_law.should live_longer_than test_population_without_law ...

law Murder

    version => :draft

    include Requires::Intent
    include Requires::Compotency
    include Exceptions::SelfDefense

    purpose "prevent killing and threats of killing humans"

    matches :victim => [:dead, :unwilling, :sentient]
    excludes :defendant => [:soldier => :legal_war]

    ensure :rank => nil # illegal-combatants, police, politicians, etc
    ensure :imprisoned


It just needs to be refactored, a lot.

Re:woohoo!

[xtracto]

So, I will just throw this post on this off-topic thread. Although it might be offtopic, it is related with the poster of the original story.

Since some time ago I have wondered who is this "I do not believe in Imaginary Property" guy/company who posts several IP-based stories on slashdot.

I found it quite interesting that he or she started posting maybe just a year ago. We have always had "recurring" authors (I remember BeatlesBeatles as one of them). However it is intriguing that someone with legal background or interest (after all, even though I do have interest in tecno-legal matters, I could not detect when some legal news relates to IP or other slashdot relevant issue).

In conclusion, do we have an idea of who these guys are?, are they from chilling effects or from groklaw?

And about the troll, yeah, it has been here for loooong time. They have several "templates" that cut and paste sometimes according to the story (the other one I remember is the one about the guy who owned a music shop and two kids get in and decide not to buy some cd and downloaded instead from the internet).

Sigh... yes, I think I should leave slashdot for some time =oP