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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."
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...
Edward Burr
Having a smoking section in a restaurant is like having a peeing section in a swimming pool.
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.
Opinionated Law Student Strikes Again!
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.
The higher the technology, the sharper that two-edged sword.
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.
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.
-- Will program for bandwidth