The Supreme Court yesterday did something doubly unusual: it issued an opinion rejecting a state's claim to sovereign immunity and did so in a unanimous opinion, written by Justice Scalia. The case is Goodman v. Georgia. The state of Georgia has been one of the most extreme advocates of sovereign immunity, and I had first hand experience with it in a copyright infringement suit I filed against the state on behalf of a software company that designed its web portal.
The Court's decision yesterday refers to its infamous Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) opinion, which seemingly spelled the end of most efforts to hold states accountable in money damages for copyright and patent infringement. I have long been scandalized by the Court's sovereign immunity case law, which I regard as a power grab at the expense of Congress, and one in which, Peanuts like, a football is put down only to be removed at the last minute. When I worked for Congress, staffers fantasized about passing the same legislation repeatedly, each time curing each of the Court's phony excuses for striking the legislation down (e.g., not enough witnesses, not enough evidence of infringement by states). Whether this would have been an effective tactic or not (given Marbury v. Madison), we at least would have been in the Court's face and would have been telling it we were an equal branch of government that would not be lectured to.
Yesterday's decision offers no solace to intellectual property owners, alas. The basis for the decision was the Court's belief that whatever may be the scope of the "prophylactic" enforcement powers of Congress under Section 5 of the 14th Amendment (something there is a split about), there is no disagreement that Section 5 can authorize Congress to provide for money damages against states for direct violations of the substantive provisions of 14th Amendment. In the case at bar, since the 14th Amendment incorporates the 8th Amendment's ban on cruel and unusual punishment, a claim for violation of the 8th Amendment provided a constitutionally sound basis for a damages claim.
Copyright infringement actions, however, seek to vindicate only statutory rights, and thus do not benefit from yesterday's decision.
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As much respect as I have for the copyright info on this blog, the analysis of Goodman is simply wrong, and misunderstands the College Savings holding. If College Savings meant that only "statutory" violations could be pursued, then permitting the suit to proceed under title II would have been impossible. (Note that Goodman is NOT a case under section 1983.).
College Savings had to do with the prophylactic exercise of section 5 power--in other words,Congress may address statutory violations under section 5 only when a sufficient record of state violation of constitutional rights exists such that sweeping in statutory violations is necessary to vindicate constitutional rights. That record was found lacking in the patent context, and subsequently in the copyright context in Chavez.
Goodman answers a different question. If Congress has abrogated sovereign immunity through sufficiently clear language and the state has actually committed a constitutional violation, may the state be held liable for damages? Goodman's answer to that question is yes.
The same is equally true of copyright infringement if the infringement can be shown to be a constitutional violation. The first question is whether these rights are "property", a question which the logic of College Savings implied, and Chavez Roth v Pritikin {sic?} all answered in the affirmative. The second (as yet unanswered question) is under what circumstances state infringement might be considered a deprivation of property under the 14th Amendment. Goodman opens that door--it does not close it. Cf. monsanto (trade secret=property for purposes of the 5th Amendment).
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