Congress’s efforts to hold states and their instrumentalities liable for copyright infringement are well documented and completely unsuccessful, due to the right-wing’s dominance of the Supreme Court. Much like Charlie Brown in the comic strip Peanuts who fails every time when the football is put down, the Court has cynically moved the goal posts for Congress in being able to enact legislation abrogating states sovereign immunity. If ever the label judicial activist was apt, it has been apt since the days of the Rehnquist Court, when the Court actively sought out cases to show Congress the contempt with which they are held by the Court – and the Rehnquist Court was a piker compared to the Roberts Court. But it is what it is, and there is no way for Congress to ever win in this battle, other than cutting back the Court’s funding back to the Justices themselves and stripping the Court of all but mandatory jurisdiction. (And how great would that be!).
The enduring nature of states’ sovereign immunity has taken a new twist though in a February opinion from the Southern District of California, Marketing Information Masters, Inc. v. The Board of Trustees of the California State University, by Judge John A. Houston, Civil No. 06cv1682 JAH. The opinion is not on Westlaw, and the court’s website uses the extremely public-unfriendly Pacer; the opinion is available, though, along with a discussion, at Stanford University’s fair use blog, here, with an article by Mary Minow.
The court held that Congress had not managed to abrogate the states’s sovereign immunity (surprise, surprise, surprise, Gomer), but there nevertheless is one surprise: the court, while dismissing the case against the university, allowed it to forward against the individual university employee who was involved in the copying, Mr. Rauch. The court’s discussion on this point is brief, and no doubt chilling to state employees:
Based on the [amended complaint], which includes allegations that Rauch personally engaged in the infringing behavior, the Court finds Plaintiff seeks relief from Rauch in his individual capacity as well as his official capacity. Accordingly. Rauch is not entitled to sovereign immunity from the suit seeking relief against him in his individual capacity.