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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."
what it means? You should have submitted it to "Ask Slashdot".
Ray Beckerman +5 Insightful
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.
And government decides it doesn't have to follow the laws. What next, candidate kisses baby, sun rises in East?
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.
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.
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!
Now I know that the parent post is definitely a terrible, off topic troll of a post.. but it is also incredibly hilarious when you consider the fact that he probably typed this all out ahead of time, and then constantly reloaded slashdot in an attempt to get a horribly graphic account of shit eating to be the "frist psot" of a story.
Now, could somebody PLEASE mod parent funny? For me?
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.
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.
Nice exposition. One further detail: a state can be sued in state court for violation of its own constitution.
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.
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.
"But as our resident high profile copyright lawyer..." In case you haven't been watching Ray's blog, it has been a VERY busy week, and he has evidently been doing not only the typical lawyer hours, but keeping up with a dozen or so RIAA cases, answering emails, and saving western civilization from what appears to be an increasingly out of control Richard Gabriel. Let him have Sunday evening off.
This would have gone over better if it were a car analogy...
Here, let me try: "Think of this in car terms: In the engine computer program's original base class (constitution) ..."
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
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.
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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No, this wasn't work-for-hire. Go do some research, it is pretty well documented that the US military did this back in the day. During WII and at the beginning of the Cold War they also pretty frequently took whole businesses using Imminent Domain.
And this is as close as you can get to really stealing IP, because once it is classified the people who came up with it can't even use it themselves.
People think the Military-Industrial Complex is dirty today, it was always dirty.
========
CINC, 4th Penguin Legion
IANAL, but I think that "as part of his job" or "in their official capacity" don't actually mean "DMV clerk who managed to install BitTorrent on his work PC and downloaded/redistributed every single new movie". I can't even imagine what kind of an official job would involve breaking copyright law, as part of the job description. Maybe a cop investigating a counterfeit DVD operation, but that's just about it.
At any rate, it seems to me that whether they fire you or not is kinda irrelevant. They can't sue you if your job description or assignment was to break copyright law, and they can't sue the state in any case, but that's about it. You can still be sued as a private person, if you broke the law on your own.
Same as, for example, you can't sue the state if a state employee downloads kiddie porn at work, but that employee can still be tried and sent to PMITA prison.
Now they will probably fire the bugger anyway, but that's sorta just the icing on the cake. Even if he kept the state-employed clerk job or whatever, the RIAA can still sue his arse off.
Anyway, on the whole I'm not sure what's to celebrate except as a clarification of the constitution. I suspect that the actual impact of it will range between insignificant to non-existent. As I was saying, there aren't that many jobs which involve unauthorized copying and distribution of copyrighted works. I would assume that any state or federal agencies which do need to copy or distribute (Library Of Congress, maybe?), already have very explicit legal exemptions.
A polar bear is a cartesian bear after a coordinate transform.
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.
...
... ...
:draft
:victim => [:dead, :unwilling, :sentient] :defendant => [:soldier => :legal_war]
:rank => nil # illegal-combatants, police, politicians, etc :imprisoned
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 =>
include Requires::Intent
include Requires::Compotency
include Exceptions::SelfDefense
purpose "prevent killing and threats of killing humans"
matches
excludes
ensure
ensure
It just needs to be refactored, a lot.
> 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
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.
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
Ubuntu is an African word meaning 'I can't configure Debian'