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.
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/* There is no way for Congress to ever win in this battle, other than cutting back the Court’s funding ... to the Justices themselves and stripping the Court of all but mandatory jurisdiction. (And how great would that be!).
*/
Well, to be honest I recently heard the phrase "The legal status of ... is ultimately a legislative question, and in the American system of democracy, legislative questions are decided by the Supreme Court" ( http://www.overcomingbias.com/2008/01/the-american-sy.html ).
If Congress were to roll back jurisdiction, maybe it could then be enticed to actually resolve several legislative questions that until now have been just kicked down the road.
/* 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.
*/
That's odd. I thought that acts by individuals made within the scope of their employment were covered by sovereign immunity, and if the Court has decided that sovereign immunity applies, doesn't it seem that the copying would have been made within the scope of the defendant's employment? Unless that's a question for later.
No--doesn't work dat way. The employee receives qualified immunity, which the fourth circuit has held (and which the district court cited) does not extend to acts of copyright infringement.
I watched the argument in this case. It has been my view that there was a missed opportunity here. Unlike RFRA or any of the other cases pre-existing Florida Prepaid, both patents (and copyrights) have long histories of recognition in the law as property. Congress could not make such a history up out of whole cloth, and thus the fear of the states being brushed aside simply did not exist in this context.
Professor, am I wrong, or isn't it the case that under Ex Parte Young, a federal court can still issue injunctive relief to a state official in his offical capacity, notwithstanding sovereign immunity.
You are right indeed, Tal
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