tag:blogger.com,1999:blog-12505562.post116731809567851986..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Congress Dissed, Copyright Owners Shafted AgainWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-12505562.post-37311903244691638392007-01-05T13:52:00.000-05:002007-01-05T13:52:00.000-05:00John, I am very happy for you to have the last wor...John, I am very happy for you to have the last wordWilliam Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167875623893879132007-01-03T20:53:00.000-05:002007-01-03T20:53:00.000-05:00I don't see why a property right created by federa...<I>I don't see why a property right created by federal law is somehow a lower species of propert than one created say by state common law.</I><BR/><BR/>Chavez v. Arte Publico Press addresses the issue:<BR/><BR/>"A separate problem besets the contention that a copyright infringement claim is property protected by the Due Process Clause; the claim proves too much. If it rests on the uniqueness of the property interest created by federal law, which is the source of Chavez's copyright, then it is a direct end-run *511 around Seminole's holding that Article I powers may not be employed to avoid the Eleventh Amendment's limit on the federal judicial power. Congress could easily legislate "property" interests and then attempt to subject states to suit in federal court for the violation of such interests. This end-run is just as possible under a liberal interpretation of the Due Process Clause of the Fourteenth Amendment as it was under theories of Article I rejected by the Court in Seminole. As the Third Circuit stated in a related context: <BR/>If a state's conduct impacting on a business always implicated the Fourteenth Amendment, Congress would have almost unrestricted power to subject states to suit through the exercise of its abrogation power. Congress could pass any law that tangentially affected the ability of businesses to operate and then create causes of action against the states in federal court if they infringed on those federally created rights. This result would be unacceptable and would conflict directly with the strict limits on Congress's powers to abrogate a state's Eleventh Amendment immunity." <BR/><BR/><I>Nor do I see how infringement by a state without payment is not a violation of due process: an injunction may stop a state from infringing in the future, but that hardly compensates a copyright owner for present or past harm.</I><BR/><BR/>"...nor shall any State deprive any person of life, liberty, or property, without due process of law." The property of which a copyright holder is "deprived" by infringement is the set of exclusive rights under sec. 106, which is fully restored by injunctive relief. The right to recover damages for infringement is a legislative grant -- a remedy for the violation of a property right, but not a property right itself. If you conceive of a claim or cause of action as a property right, then the 14th Amendment guaranty swallows sovereign immunity altogether. The claim for damages for infringement is indistinguishable from the claim for damages for any ordinary breach of contract, or negligence claim. <BR/><BR/><I>As a policy matter, I don't understand why states should be so privileged.</I><BR/><BR/>A couple of points: First, the 11th Amendment establishes the policy -- immunizing States from liability for damages in federal court. Sovereign immunity isn't designed to allow States to break the law with impunity -- only to shield them from judgments rendered by the courts of a supposedly co-equal sovereign. <BR/><BR/>Second, States are not immune from state court judgments, and until Congress preempted state laws under sec. 301, the copyright holder could have recovered in state court. <BR/><BR/>Third, until 1960, the federal government was also immune from liability for copyright infringement. The federal government waived immunity, partly out of concern that immunity exposed its agents and employees, acting on its behalf, to indivdual liability. Except where States have waived immunity, their employees who commit copyright infringement can be sued, but if they are acting within the scope of their employment, and in good faith, they will likely be defended and indemnified by their employer. It may be wise for States to follow the lead of the federal government and waive immunity, but the federal government can't do it for them (or to them), unless the refusal of the States to accept responsibility for infringement by their employees amounts to a denial of due process in violation of the 14th Amendment, which seems like a stretch.<BR/><BR/><I>States can protect their treasuries simply by obeying the law.</I><BR/><BR/>You say that as though we weren't talking about protecting your wallet, and mine, from the consequences of unlawful conduct by State employees. You may be willing to compensate copyright holders for infringement by State employees on a wholesale basis, but I'm inclined to let the Attorney General decide on a case by case basis whether or not the taxpayers should assume responsibility for an employee's malfeasance.<BR/><BR/>I've enjoyed the discussion, but I don't want to wear out your patience. I promise to let you have the last word if you want to reply.<BR/><BR/>John NobleAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167768190456236652007-01-02T15:03:00.000-05:002007-01-02T15:03:00.000-05:00John, I don't see why a property right created by ...John, I don't see why a property right created by federal law is somehow a lower species of propert than one created say by state common law. Nor do I see how infringement by a state without payment is not a violation of due process: an injunction may stop a state from infringing in the future, but that hardly compensates a copyright owner for present or past harm. As a policy matter, I don't understand why states should be so privileged. States can protect their treasuries simply by obeying the law.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167550603657299332006-12-31T02:36:00.000-05:002006-12-31T02:36:00.000-05:00I assume you mean that UCLA can sue USC, but not v...I assume you mean that UCLA can sue USC, but not vice-versa, and I would agree that UCLA should be deemed to have waived its immunity from copyright infringement liability if it invokes the jurisdiction of the federal court to enforce its own copyrights. More generally, though, I have a hard time seeing copyright infringement as a deprivation of property without due process, especially since the property right is a creation of federal law, and more especially since the "deprivation" can be remedied by injunctive relief, which is not foreclosed by the 11th Amendment, and even by a suit for damages against the officers of the State who perpetrated the infringement.<BR/><BR/>The issue is whether the federal government, by its courts, should be able to levy money judgments against state governments, and everything else that entails, including, specifically, seizures of state property to satisfy those judgments. I realize that we've come a long way from the federalism envisioned by the Founding Fathers, but there was a time when the Supreme Court's acceptance of jurisdiction over a suit brought by a citizen of one State against another State (Chisolm v. Georgia, 1793), provoked such alarm that the very next meeting of Congress produced the 11th Amendment (the first after the Bill of Rights), which was overwhelming approved by both houses, and ratified within one year. The national crisis that occasioned the adoption of the 14th Amendment justified the abrogation of State immunity to guaranty equal protection and due process to all of the citizens of the United States, but it wasn't meant to vanquish sovereign immunity.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167498705965538142006-12-30T12:11:00.000-05:002006-12-30T12:11:00.000-05:00John, thanks for your very thoughtful and detailed...John, thanks for your very thoughtful and detailed post. Of course, the hoops that Congress allegedly has to jump through are hoops that the Court itself created, so it is circular to say Congress has somehow failed to act properly; acting properly in this instance is an artificial construct imposed by the Court.<BR/><BR/>I also don't think many would deny that the Court keeps changing the manner in which the hoops have to be circumnavigated, and always retrospectively: that is, Congress passes legislation abrogating state sovereign immunity according to the then-current Supreme Court guidelines; the legislation is challenged (in the Rehnquist era because the Court repeatedly invited litigants to do so)and voila, the Court announces new guidelines which the legislation in question manages not to satisfy.<BR/><BR/>A few other points: the 1990 legislation was very carefully drafted in consultation with experts on sovereign immunity, including former Supreme Court clerks, and other academics who had written on the subject. There were hearings, there was testimony. I find it outrageous that the Court - or or any court would second guess the record Congress legislated on; this wasn't a quicky deal; it was open, public, protracted, bispartisan, and based on real eaxmples.<BR/><BR/>The other problem, the one about opening the federal courts, is that for copyright infringement, there is no state court available. There is, moreover, as Congressman Carlos Moorhead (a very conservative Republican) stated at the 1990 hearing, an unfairness that the University of Southern California (a private school) can sue UCLA for money damages for infringement, but not the other way around.<BR/><BR/>For me, I would deny states all copyright ownership, unless legislation is passed at the state level waiving sovereign immuinity.And if I still worked on the Hill, I would argue for passing the same legislation over and over again, and further perhaps, given the anorexic docket, for cutting the Court's staff down by eliminating law clerks. With a docket at pre-civil War times when there were no law clerks, it might be healthy to return to the staffing of those days.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167430271574131492006-12-29T17:11:00.000-05:002006-12-29T17:11:00.000-05:00The Supreme Court's 14th Amendment, sec. 5 jurispr...The Supreme Court's 14th Amendment, sec. 5 jurisprudence is vulnerable to the criticism that it invites the courts to second-guess Congress' findings of unconstitutional State conduct that warrant abrogation of sovereign immunity. However, the district court in this case is on pretty firm ground. <BR/><BR/>The invocation of sec. 5 of the 14th Amendment is more than just a loophole that Congress has to jump through. It signifies that Congress is acting to remedy a violation of due process or equal protection, rather than acting pursuant to the IP clause or commerce clause of Article I, which powers are both constrained by the 11th Amendment. The 14th Amendment gives Congress limited authority to abrogate sovereign immunity to enforce enforce the rights to equal protection and due process that we fought the Civil War over -- not to swing open the doors of the federal courthouse to every claim or cause of action that might be brought against a state.<BR/><BR/>The legislative record in support of abrogating sovereign immunity for state violations of the Copyright Act is not just sparse -- it's void. The court acknowledges "a handful of cases in which states infringed copyrights, and [in] at least in some of those cases the offending states used the Eleventh Amendment to shield themselves from responsibility for their actions." That record multiplied a hundred-fold would not support a finding that states are denying due process (nor, more obviously, equal protection). Copyright infringement by itself is not a violation of due process. The fact that states can escape liability for copyright infringement is not a violation of due process -- otherwise every instance of sovereign immunity would violate the due process clause. The failure of states to waive sovereign immunity is not a violation of due process absent a finding that injunctive relief alone (which remains available under the 11th Amendment) is not all the process that is due. <BR/><BR/>If Congress could authorize suits against the State for every claim of copyright infringement arising out of the breach of a license agreement, then it could authorize federal court jurisdiction over every plain-vanilla breach of contract claim or tort claim that might survive a 12(b)(6) motion. In fact, Congress' authority to abrogate state immunity for copyright infringement claims is even more troublesome than its authority to authorize suit for an ordinary breach of contract. The ostensible violation of the 14th Amendment is the deprivation of property without due process. The property right in question -- a copyright -- is a creation of federal law. When a state breaches a procurement contract by failing to pay for the police cars that it ordered from GM, there is a clear deprivation of property (and ordinarily a waiver of immunity that allows GM to sue for payment); but when a state is charged with copyright infringement, there is a deprivation of property, rather than a tort claim (for which the state may or may not have waived immunity), only by virtue of the federal law that creates a "property right" in original works of authorship. Sec. 5 authorizes Congress to remedy substantive violations of the 14th Amendment -- not to create them by manufacturing property rights.<BR/><BR/>Sovereign immunity is more than a constitutional nicety. Immunity is an essential attribute of state sovereignty. Without immunity, federal courts would have the capacity to bankrupt states, to impose liability on state taxpayers, to command state revenue-raising measures, and to direct state appropriations. It is not an exaggeration to say that the 11th Amendment protects the states from extinction at the hands of the federal courts. You can point to cases like U.S. v. Morrison, and make a good argument that the Court oversteps its authority (and competence) when it engages in "de novo" review of the record supporting XIV Amend., sec. 5, legislation; but unless you want to overturn Marbury v. Madison, only the courts can decide whether or not legislation allowing suits in federal court against the States is necessary and narrowly drawn to remedy a violation of the 14th Amendment.<BR/><BR/>John NobleAnonymousnoreply@blogger.com