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Court Finds Part of Copyright Act Unconstitutional

timothy posted more than 6 years ago | from the small-favors dept.

The Courts 240

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."

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woohoo! (-1, Troll)

Anonymous Coward | more than 6 years ago | (#23138010)

"A few years ago, while browsing around the library downtown, I had to
take a piss. As I entered the john, a big beautiful all-American
football hero type, about twenty five, came out of one of the booths. I
stood at the urinal looking at him out of the corner of my eye as he
washed his hands. He didn't once look at me. He was "straight" and
married -- and in any case I was sure I wouldn't have a chance with him.
  As soon as he left, I darted into the booth he'd vacated, hoping there
might be a lingering smell of shit and even a seat still warm from his
sturdy young ass. I found not only the smell but the shit itself. He'd
forgotten to flush. And what a treasure he had left behind. Three or
four beautiful specimens floated in the bowl. It apparently had been a
fairly dry, constipated shit, for all were fat, stiff, and ruggedly
textured. The real prize was a great feast of turd -- a nine inch
gastrointestinal triumph as thick as a man's wrist. I knelt before the
bowl, inhaling the rich brown fragrance and wondered if I should obey
the impulse building up inside me. I'd always been a heavy rimmer and
had lapped up more than one little clump of shit, but that had been just
an inevitable part of eating ass and not an end in itself.
  Of course I'd had jerkoff fantasies of devouring great loads of it
(what rimmer
hasn't), but I had never done it. Now, here I was, confronted with the
most beautiful five-pound turd I'd ever feasted my eyes on, a sausage
fit to star in any fantasy and one I knew to have been hatched from the
asshole of the world's handsomest young stud.
Why not? I plucked it from the bowl, holding it with both hands to keep
  it from breaking.
  I lifted it to my nose. It smelled like rich, ripe limburger (horrid,
but
thrilling), yet had the consistency of cheddar. What is cheese anyway
but milk turning to shit without the benefit of a digestive tract? I
gave it a lick and found that it tasted better then it smelled. I've
found since then that shit nearly almost does. I hesitated no longer. I
shoved the fucking thing as far into my mouth as I could get it and
sucked on it like a big brown cock, beating my meat like a madman. I
wanted to completely engulf it and bit off a large chunk, flooding my
mouth with the intense, bittersweet flavor. To my delight I found that
while the water in the bowl had chilled the outside of the turd, it was
still warm inside. As I chewed I discovered that it was filled with hard
little bits of something I soon identified as peanuts. He hadn't chewed
them carefully and they'd passed through his body virtually unchanged. I
ate it greedily, sending lump after peanutty lump sliding scratchily
down my throat. My only regret was the donor of this feast wasn't there
to wash it down with his piss. I soon reached a terrific climax. I
caught my cum in the cupped palm of my hand and drank it down. Believe
me, there is no more delightful combination of flavors than the hot
sweetness of cum with the rich bitterness of shit. Afterwards I was
sorry that I hadn't made it last longer. But then I realized that I
still had a lot of fun in store for me. There was still a clutch of
virile turds left in the bowl. I tenderly fished them out, rolled them
into my hankercheif, and stashed them in my briefcase. IN the week to
come I found all kinds of ways to eat the shit without bolting it right
down. Once eaten it's gone forever unless you want to filch it third
hand out of your own asshole.
  Not an unreasonable recourse in moments of desperation or simple
boredom.
  I stored the turds in the refrigerator when I was not using them but
  within a week they were all gone.
  The last one I held in my mouth without chewing, letting it slowly
dissolve. I
had liquid shit trickling down my throat for nearly four hours. I must
have had six orgasms in the process. I often think of that lovely young
guy dropping solid gold out of his sweet, pink asshole every day, never
knowing what joy it could, and at least once did,bring to a grateful
shiteater."

Re:woohoo! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23138220)

this is the dumbest thing i've ever read. was this suppose to have something to do with linux?

Re:woohoo! (3, Funny)

clichescreenname (1220316) | more than 6 years ago | (#23138248)

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?

Re:woohoo! (0, Offtopic)

calebt3 (1098475) | more than 6 years ago | (#23138374)

That troll has been around longer than I have (which isn't saying much, but I digress). It's probably a text file in his "My Documents" folder.

How should I know.... (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23138038)

what it means? You should have submitted it to "Ask Slashdot".

Re:How should I know.... (-1, Troll)

SpeedyDX (1014595) | more than 6 years ago | (#23138072)

Wow, I like how you're first post too.

I think you should just be glad that the entirety of /. thinks this highly of you. If I were you, I'd have just pulled stuff out of my ass and pretended to know what I was saying. We probably would've believed you either way.

Then again, that's probably the reason why I don't have the same cult following as you do.

I love you NYCL~

Re:How should I know.... (0, Offtopic)

BigDaddyNyth (932952) | more than 6 years ago | (#23138108)

I would love anyone who can explain this

Re:How should I know.... (1, Informative)

Compulawyer (318018) | more than 6 years ago | (#23138306)

Love me then ... and scroll down for my explanation.

Re:How should I know.... (2, Insightful)

ScrewMaster (602015) | more than 6 years ago | (#23138112)

Then again, that's probably the reason why I don't have the same cult following as you do.

Technically, when people follow someone who they recognize actually knows what he's talking about it's not a cult.

Re:How should I know.... (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23138130)

The term "cult following" does not use the definition of "cult" you are implying it does.

Re:How should I know.... (2, Insightful)

ScrewMaster (602015) | more than 6 years ago | (#23138208)

I disagree. A cult is generally a group of people who follow a charismatic leader who has only his own best interests at heart. The followers themselves are usually unable to recognize the fact they're being hoodwinked, or even do much thinking for themselves. That does not in any way describe the people that follow NYCL's writings, or Ray Beckerman himself for that matter.

Re:How should I know.... (1, Informative)

somersault (912633) | more than 6 years ago | (#23138296)

Uh..

The term "cult following" does not use the definition of "cult" you are implying it does.
Note: The term "cult following" does not use the definition of "cult" you are implying it does.

The 'cult' part in this well known phrase simply means that the followers are fairly limited in number, but very devout. Not that they are brainwashed. For example Another common use of the word cult is in film: for example the Blues Brothers is known as a 'cult classic', though it has nothing whatsoever to do with cults. Apart from possibly those Nazi dudes.

Re:How should I know.... (1, Insightful)

CSMatt (1175471) | more than 6 years ago | (#23138324)

This isn't what he meant by "cult following."

For example, the film Office Space is considered to have a "cult following." Is Mike Judge a cultist? Of course not. The term just means that the film's popularity is relatively small and usually consists of a niche audience, hence the use of the word "cult." The same definition is being applied in this scenario to NewYorkCountyLawyer and those who follow his posts.

Re:How should I know.... (3, Funny)

alx5000 (896642) | more than 6 years ago | (#23138096)

Mmmmmm maybe you misunderstood, and he was actually referring to some other clarification source [wikipedia.org] ...

Re:How should I know.... (1)

Compulawyer (318018) | more than 6 years ago | (#23138110)

Nice one Ray ....

Re:How should I know.... (1)

wanax (46819) | more than 6 years ago | (#23138164)

Should you *know*? No. But as our resident high profile copyright lawyer, who's enlisting our help against the RIAA, I would certainly appreciate it if you offered an educated opinion...

And besides, what's Ask Slashdot going to get besides a whole bunch of IANAL preceded rants in this type of submission?

Re:How should I know.... (1)

Compulawyer (318018) | more than 6 years ago | (#23138320)

And besides, what's Ask Slashdot going to get besides a whole bunch of IANAL preceded rants in this type of submission?

You never know ... some of the real lawyers on Slashdot may come out and comment on it.

Ray's busy - cut him some slack (2, Funny)

rozthepimp (638319) | more than 6 years ago | (#23138424)

"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.

Re:How should I know.... (0)

Anonymous Coward | more than 6 years ago | (#23138490)

Should you *know*? No. But as our resident high profile copyright lawyer, who's enlisting our help against the RIAA, I would certainly appreciate it if you offered an educated opinion...
Judges issue "opinions" in the name of their assigned court jurisdiction, lawyers quote them and related laws as they view it to best serve the interests of their clients while staying within the applicable codes of their position as required by law, their certification boards and their own personal sense of honor. They can argue their applicability or constitutionality of a law or an issued "court opinion" but the "final opinion" resides, at least in the US, with the Supreme Court.

Additionally, with Ray being experienced in the area of copyright law, it is possible he may have to one day defend a client where this decision might be relevent. Therefore any "educated opinion" he might give out here could be quoted in the courtroom and he would likely prefer doing diligent discovery first as opposed to off-the-cuff opinion giving. Generally speaking most of what he says here that he already said in the court room or he quotes from court records and the media.

IANAL, nor a mind reader, just taking a guess at what is perhaps a part of Ray's reasons for the very humorous reponse as opposed to giving an "educated opinion". Even his humourous reply is perhaps something he has said in reply to a lawyer from the opposition or one of their "experts", perhaps in a RIAA related case. Disclaimer: Misquote for humour purposes only. "Nice expert you have there, might I suggest you use Ask Slashdot next time?" :P

Re:How should I know.... (1)

wanax (46819) | more than 6 years ago | (#23139000)

You make a really good point that I forgot about... that RIAA lawyers do seem to want to submit things like blog comments, etc that have no legal bearing to the judge in many cases.

At the same time though, since I was asking for an opinion in the colloquial meaning, I don't think my original request is too burdensome, since Mr. Beckerman, like anybody else can free himself from the burden by temporarily becoming an AC.

I've a question for you (1)

smitty_one_each (243267) | more than 6 years ago | (#23138174)

What's the difference between a country lawyer and a rural juror? The urban fervor?

:-D (0)

Anonymous Coward | more than 6 years ago | (#23138222)

As a soon-to-be-attorney, and someone from whom family and friends are constantly trying to wring legal advice, your comment put a big grin on my face.

Re::-D (1)

SanityInAnarchy (655584) | more than 6 years ago | (#23138748)

As a software developer and Linux geek, I can say that probably everyone on Slashdot can identify in some way or another.

Specifically, reminds me of this shirt [thinkgeek.com] -- of course, I fix their computer anyway, but I'm always tempted...

Copyright Remedy Clarification Act (5, Informative)

QuantumG (50515) | more than 6 years ago | (#23138046)

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.

Pretty much my take on it... (0)

Anonymous Coward | more than 6 years ago | (#23138156)

That's pretty much my take on it. So now I wonder if the Federal Government has given up it's own protection from infringement?

Oh, and I should mention one other thing lest you think the Court let them off the hook: they can still sue whoever it was that allegedly infringed upon their precious report by rewriting bits of it, but that person has no money to speak of.

Sorry to call you out like that, NYCL, but I thought you would have a better handle on it. Next time, I'll have to get my legal advice from Ask Slashdot, just like you said ;-)

- I Don't Believe in Imaginary Property [eff.org]

Re:Copyright Remedy Clarification Act (0)

Anonymous Coward | more than 6 years ago | (#23138444)

no it doesn't. it says they can't be exempted by any other type of legal exemption. they could still be found in violation.

Re:Copyright Remedy Clarification Act (0)

Anonymous Coward | more than 6 years ago | (#23138562)

i wasn't clear. it means that if a state or part of the government were to offer a specific person exemtption (like a researcher) that would have previously been in violation of this law but they struck that down.

Dog Bites Man! (2, Insightful)

russotto (537200) | more than 6 years ago | (#23138060)

And government decides it doesn't have to follow the laws. What next, candidate kisses baby, sun rises in East?

Re:Dog Bites Man! (1)

tony1343 (910042) | more than 6 years ago | (#23138542)

The Constitution is the ultimate and supreme law of the United States! So you aren't breaking the law when you go against the terms of an unconstitutional act by Congress.

Re:Dog Bites Man! (1)

Uart (29577) | more than 6 years ago | (#23138690)

The 11th Amendment just says that you can't sue a State in Federal court.

There is nothing in there saying that states have sovereign immunity over a copyright claim.

Re:Dog Bites Man! (1)

tony1343 (910042) | more than 6 years ago | (#23138910)

If you can't sue a state in federal court for a copyright violation wouldn't that basically be sovereign immunity?

Re:Dog Bites Man! (2, Informative)

Xenographic (557057) | more than 6 years ago | (#23138978)

> The 11th Amendment just says that you can't sue a State in Federal court.

True. It's the part where copyright claims have to be filed in federal court (see 28 U.S.C. sec. 1338(a) [cornell.edu] -- citation taken from Compulawyer's post [slashdot.org] ) that really complicates things.

Not to mention a few other rulings cited in the decision.

huh? (0)

BigDaddyNyth (932952) | more than 6 years ago | (#23138070)

I am glad that this happen, not sure exactly why, but the 14th amendment helped free the slaves so it can't be all bad.

Re:huh? (1)

calebt3 (1098475) | more than 6 years ago | (#23138322)

Cue the racist trolls.

Re:huh? (2, Informative)

Anonymous Coward | more than 6 years ago | (#23138384)

that's the 13th amendment. 14th amendment deals with Due Process and Equal Protection.

Re:huh? (2, Informative)

tony1343 (910042) | more than 6 years ago | (#23138544)

Passed so that states had to provide due process and equal protection to the newly freed slaves (as well as others).

uh? (0, Redundant)

z-j-y (1056250) | more than 6 years ago | (#23138078)

I have no idea what you are saying.

he's fired, then sued (4, Interesting)

egburr (141740) | more than 6 years ago | (#23138166)

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...

Sweet! (-1, Troll)

Anonymous Coward | more than 6 years ago | (#23138172)

This should end the GPL hypocrisy once and for all. Linux' EULA is quite unenforcable.

Re:Sweet! (-1, Troll)

Anonymous Coward | more than 6 years ago | (#23138270)

Yeah fuck the GPL. It's a piece of shit that is viral and likes to screw over companies who are trying to make a profit. These same companies employee the largest percentage of the work force, and the viral GPL comes along and makes these hardworking companies in America and the rest of the world give up their competitive advantage. I think Stallman is nothing but a lousy hobo who can't seem to stop living in the 60s.

Re:Sweet! (1)

ScrewMaster (602015) | more than 6 years ago | (#23138314)

Yeah fuck the GPL. It's a piece of shit that is viral and likes to screw over companies who are trying to make a profit. These same companies employee the largest percentage of the work force, and the viral GPL comes along and makes these hardworking companies in America and the rest of the world give up their competitive advantage. I think Stallman is nothing but a lousy hobo who can't seem to stop living in the 60s.

You're a remarkably uninformed example of a Slashdot troll. Try harder next time ... having a coherent argument backed by a few actual facts would help.

Re:Sweet! (0)

Anonymous Coward | more than 6 years ago | (#23138446)

Ok, screw. You KNOW that it is a troll. Why bother talking to it?

Re:Sweet! (5, Informative)

mark-t (151149) | more than 6 years ago | (#23138628)

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.

Constitutional Law 101 (5, Informative)

Compulawyer (318018) | more than 6 years ago | (#23138184)

Ok ... here goes ...

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.

Re:Constitutional Law 101 (0)

RiotingPacifist (1228016) | more than 6 years ago | (#23138262)

Please note the above does not apply to drug laws where they'll bust your ass anyway!

Re:Constitutional Law 101 (4, Funny)

somersault (912633) | more than 6 years ago | (#23138326)

You mean they could bust Texas for possession?

Re:Constitutional Law 101 (1)

Trails (629752) | more than 6 years ago | (#23138502)

hell yes, do you know how much meth is in texas?!?

Re:Constitutional Law 101 (1)

belmolis (702863) | more than 6 years ago | (#23138328)

There is no discussion of whether copyright infringment is a vestige of slavery in the opinion. Rather, the court holds that there is no evidence of a pattern of copyright infringement by the states which would justify abrogation of state sovereign immunity.

I think that you're wrong about the "vestige of slavery" bit. It is true that the purpose of the Fourteenth Amendment was to give full civil rights to former slaves, but what amendment actually does is to extend to the states certain restrictions previously imposed only on the federal government. No showing of a relationship to slavery is required. For example, the denial of the vote to women is not a vestige of slavery since at the time of the passage of the 14th Amendment free women did not have the vote. However, I am sure that the Supreme Court would overturn a state statute denying the vote to women on the grounds that it violates the Equal Protection clause, which is extended to the states by the 14th amendment.

Re:Constitutional Law 101 (1)

Compulawyer (318018) | more than 6 years ago | (#23138418)

I've now read the opinion. I may be confusing the rationale for enactment of the Civil Rights Act with the rationale for the 14th Amendment. However, the case does hold that the enforcement clause of the 14th Amendment does not permit Congress to abrogate sovereign immunity for copyright claims - at least on the scant legislative history of the act.

Re:Constitutional Law 101 (1)

drawfour (791912) | more than 6 years ago | (#23138460)

For example, the denial of the vote to women is not a vestige of slavery since at the time of the passage of the 14th Amendment free women did not have the vote. However, I am sure that the Supreme Court would overturn a state statute denying the vote to women on the grounds that it violates the Equal Protection clause, which is extended to the states by the 14th amendment.
Or maybe they would just go with the 19th amendment [wikipedia.org] .

Re:Constitutional Law 101 (1)

belmolis (702863) | more than 6 years ago | (#23138512)

Yes, that's true. I forgot that the 19th Amendment explicitly applied to the states.

Re:Constitutional Law 101 (2, Informative)

Goobermunch (771199) | more than 6 years ago | (#23138528)

The trick here is that over the past 15 years, the Supreme Court has been cutting back on Congress' ability to meddle in the affairs of the States. One way that has been done is strictly applying the Constitution's rules for when Congress can act. Formerly, one of Congress' favorite tricks was to use its power to regulate commerce between the states to impact anything that had moved or could move in interstate commerce. The Supreme Court trimmed that back by actually requiring the regulated behavior be connected to interstate commerce.

They also pared back Congress' ability to enact laws under Section 5 of the 14th Amendment. Section 5 provides that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." One of the things Congress had done with Section 5 was to abrogate the States' sovereign immunity against certain kinds of suits. The Supremes killed that technique by requiring that Congress first demonstrate that the regulation was designed to remedy long-standing invidious discrimination. Only if Congress shows that the abrogation of sovereign immunity is required to address long-standing, invidious discrimination will the Constitution permit a suit against the state.

Clearly, Congress hasn't been able to show a longstanding history of invidious discrimination.

Nevertheless, I'm not sure that the statute is necessary to reach the desired goal. The 5th amendment prohibits the state from taking property without due compensation. It has been incorporated through the 14th Amendment to apply to State governments. If the state is taking your IP, I would think that you'd have a cause of action for a violation of the 5th. And fortunately, you don't need Congressional permission to sue your state for violating your constitutional rights.

--AC

Re:Constitutional Law 101 (0)

Anonymous Coward | more than 6 years ago | (#23138500)

The Asmytote of your post is a point. It is always geting closer, but it will never quite reach it.

Re:Constitutional Law 101 (4, Interesting)

KutuluWare (791333) | more than 6 years ago | (#23138522)

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.

While that was the purpose of the 14th Amendment at the time, it actually has much broader powers than merely abolishing slavery. Amendment XIV intentionally mimics the language of Amendment V, in that it forbids the states from "depriv[ing] any person of life, liberty, or property, without due process of law;". This Amendment is the reason that the freedoms express in various constitutional amendments are now applied to the states, despite clearly being directed toward Congress, e.g., the federal government, and not the states.


In this case, Congress attempted to apply that standard to copyright law, by claiming that violation of copyright deprived the copyright holder of "property", and because of the states' normal immunity to federal suit, did so "without due process". In order for this law to pass Contitutional muster, it must fall clearly within the scope of that 14th amendment clause, for the reason you mentioned: if no constitutional amendment expressly grants Congress the power to override the 11th Amendment, Article I forbids them from doing so.


What the court found, based on earlier decisions, was that this particular law did not meet the strict test for determining if it fell legally within the 14th Amendment. Read in isolation that Amendment does seem to cover this particular action, but the Constitution cannot be read in isolation. In order to balance Amendment XIV with Amendment XI, the courts impose limits on how free Congress can get with its 14th Amendment powers, which are similar to the limits the Court places on Congress's attempts to limit First Amendment rights. Specifically, the law in question must be designed to address a specific infringment in the most specific and limited means possible. Since the Copyright Remedy Clarification Act was essentially preemptive (the Court didn't find the "evidence" used to support the act as being very consistant), and because there are other remedies for the copyright holder (individual suits; breach of contract suits; etc), the Court found that Congress overstepped their bounds with this act.



Re:Constitutional Law 101 (2, Insightful)

OMNIpotusCOM (1230884) | more than 6 years ago | (#23138782)

And this is why I simply adore Slashdot. One week you've got people discussing different parts of astro physics using nouns that have people's names in front of them, then you got an article for some dumbass who dressed up as a Wii remote and called himself a superhero, and then you get articles like this, where people throw words around that I can pretend I understand and say things like, "Oh, that's interesting," and, "I never thought of it that way before."

Re:Constitutional Law 101 (0)

Anonymous Coward | more than 6 years ago | (#23138938)

Thank you for this explanation. I wasn't able to connect the dots between the "due process" and "equal protection" in the 14th amendment to how the court found that Congress overstepped its powers. I wish your summary was part of the original article.

Re:Constitutional Law 101 (0)

Anonymous Coward | more than 6 years ago | (#23138566)

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 in state courts.


Very true! But per my reading of the ruling (IANAL), it looks like individuals can still be held responsible for infringement, just not the state itself, nor people acting in their official capacity.

Of course, the article says that people are outside their official capacity the minute they do something illegal, so it looks like the point of this is that they have to sue some person, not the state itself, for any infringement they find.

I don't suppose this will come up much in the RIAA cases, but who knows? If the RIAA thought they had a claim against universities as a whole instead of just the students, I don't doubt that they would sue...

- I Don't Believe in Imaginary Property [eff.org]

Re:Constitutional Law 101 (1)

tony1343 (910042) | more than 6 years ago | (#23138596)

Almost positive your analysis is wrong at least partially. The 14th Amendment was indeed passed to abolish the vestiges of slavery. BUT it does much more than that, and Congress can use it to do more than that. In Tennessee v. Lane (2004), the Court upheld a law taking away sovereign immunity from states that failed to provide adequate access for disabled citizens to courtrooms under Section 5 of the 14th Amendment. This has nothing to do with a vestige of slavery. So you see, the Amendment is interpreted much more broadly than just slavery (as it should be since slavery is not within the text). Just because it was passed as part of Reconstruction doesn't mean its limited to that.

Re:Constitutional Law 101 (1)

DustyShadow (691635) | more than 6 years ago | (#23138788)

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.
Actually, not all of the first 10 Amendments have been incorporated. The Seventh Amendment has not been.

Re:Constitutional Law 101 (0, Troll)

doomy (7461) | more than 6 years ago | (#23139008)

Ok ... here goes ...


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 United States has always been one nation under God with Bush as its spiritual and supreme leader. Anyone who doubts this or counters this notion is henceforth a terrorist.

In Brief (1)

Doc Daneeka (1107345) | more than 6 years ago | (#23138200)

So long as a public official is fulfilling the duties of his office and not breaking any laws, he cannot be sued for copyright violations. If he does break a law, then he can be stripped of his position, the 11th amendment protection, and be sued. (Paraphrased from the first article)

Obligatory: IANAL.

Not a good thing? (0)

Anonymous Coward | more than 6 years ago | (#23138204)

The way I read this (and I'm a lawyer) through official action, a state can now, willy-nilly, appropriate intellectual property with immunity.

I don't see that as a good thing at all. It doesn't hurt the RIAA, it hurts everyone who does business with a state that involves any kind of IP....

Re:Not a good thing? (5, Interesting)

ScrewMaster (602015) | more than 6 years ago | (#23138284)

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.

Re:Not a good thing? (2, Informative)

HRH King Lerxst (79427) | more than 6 years ago | (#23138662)

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.

Sovereign Immunity is waivable. (3, Interesting)

Uart (29577) | more than 6 years ago | (#23138224)

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.

Re:Sovereign Immunity is waivable. (4, Informative)

Compulawyer (318018) | more than 6 years ago | (#23138288)

The "Nutty Ninth" is actually one of the leading circuits for copyright law along with the 2nd Circuit. The opinion is a district court opinion and cites to a 5th Circuit opinion holding the same way. It also cites to other decisions with similar holdings for the analogous statutes in the patent and trademark areas.

I know as a law student you probably know more law than I do, but as a practicing IP lawyer, I have to disagree with you. I don't think a petition for certiorari would be granted and if it was, I think the decision of the trial court would be upheld.

Re:Sovereign Immunity is waivable. (1)

Uart (29577) | more than 6 years ago | (#23138656)

I admit I didn't read the decision... however, I disagree with your opinion that the SCOTUS would not grant cert. They most certainly would want to resolve this issue.

After reading through the material a little more, I agree that it's not a slam dunk reversal at that level, BUT, I don't think it's a slam dunk to uphold the decision either.

The 11th Amendment essentially says that Federal courts do not have jurisdiction over claims against a state.

The necessary and proper clause, however would apply to Congress' power to "promote the progress of science and useful arts," and potentially allow this law to apply to states, regardless of their sovereign immunity. I suppose you could also make a claim involving the commerce clause there...

Furthermore, the subdivisions of a state do not have universal sovereign immunity. In this case, a State University might have difficulty asserting that immunity in any case.

The federal court would be right to dismiss this case for lack of jurisdiction, but the law itself could very well be upheld, so long as the case is brought in a state court. (Of course, this would just make forum selection for practicing lawyers and students taking civil procedure more of a pain).

Re:Sovereign Immunity is waivable. (1)

Uart (29577) | more than 6 years ago | (#23138740)

Eh... ignore most of that... apparently state courts don't have subject matter jurisdiction to hear federal copyright claims (unless it arises as a counterclaim, which would be unlikely).

Still, the law wouldn't be unconstitutional, per se, just entirely unenforceable.

Re:Sovereign Immunity is waivable. (1)

somersault (912633) | more than 6 years ago | (#23138336)

I believe in you! Here - have my flame retardant cloak!

Re:Sovereign Immunity is waivable. (1)

Maestro485 (1166937) | more than 6 years ago | (#23138426)

What happens when you create a genuinely unique piece of "intellectual property" and are sued into the dirt by the owners of IP law? Current IP law exists to destroy real innovation (e.g. what you may or may not have created) in order to preserve the status quo. Intellectual Property rights may be important, but certainly not for people like yourself.

Re:Sovereign Immunity is waivable. (1)

Uart (29577) | more than 6 years ago | (#23138568)

So instead of fixing the inequities of the law as it is enforced, you'd rather not have IP rights at all.

Re:Sovereign Immunity is waivable. (3, Insightful)

Maestro485 (1166937) | more than 6 years ago | (#23138640)

Not quite, it's just that you're defending an IP system that works against you. Fixing inequities in the law is impossible because the law is written by those with much more money and interest than you. I personally think that "IP" should exist to compensate authors for their work, not to make billionaires out of talentless hacks who manipulate those with less cash. It is impossible to "fix inequities" without someone rich getting shafted, which is why it will never happen.

Re:Sovereign Immunity is waivable. (2, Interesting)

Quattro Vezina (714892) | more than 6 years ago | (#23138586)

The government already _does_. It's called Eminent Domain.

Back during the Anthrax scare, the government nearly seized Bayer's patent on Cipro under Eminent Domain.

And as someone who despises both states' "rights" and intellectual "property" with a bloody passion, I'm quite torn on this. I hate anything that protects states' "rights", but I love anything that degrades copy"right".

Re:Sovereign Immunity is waivable. (1)

timmarhy (659436) | more than 6 years ago | (#23138612)

No one here will argue that having a good idea and being allowed the chance to profit from that idea is wrong.

the primary problem most of us have is that copyright terms are not in the public interest, which is the whole reason copyrights and patents are given in the first place - a government granted monopoly in exchange to that work or invention passing into the public domain.

Re:Sovereign Immunity is waivable. (0, Troll)

Uart (29577) | more than 6 years ago | (#23138776)

Actually, according to the Constitution, copyrights and patents exist to, "promote the progress of science and useful arts."

The benefit to the public being that those things are created, not that they pass into the public domain.

Re:Sovereign Immunity is waivable. (1)

tony1343 (910042) | more than 6 years ago | (#23138658)

Uh, I'm also a law student.

Have you read Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank?

The Court struck down a law taking away sovereign immunity from the states for patent infringement. Why is copyright different (I haven't researched this very much, so obviously I'm open to convincing)?

Of course, sovereign immunity is waivable. A waiver implies voluntary relinquishment (meaning the state decides to do it, not the federal government). Here the state might not want to waive its sovereign immunity.

I also think it is probably very difficult to predict that the Supreme Court would definitely grant cert, since that happens in such a small percentage of the time.

Why I am glad for this ruling. (1)

Xenographic (557057) | more than 6 years ago | (#23138724)

> Why would you want this anyway? Do you really want the government to have the right to steal your work?

It's not that simple. They CAN still sue the individual responsible, per my understanding (IANAL, but it's discussed in TFA).

They just can't get lots of money from the state, now. They also appear to have been trying to copyright mere ideas, but that's another can of worms.

So, IMHO, it's a good ruling and good law, because it's not like the states have been authorizing infringement to begin with, and the state shouldn't necessarily be held responsible for what employees do on their own. I don't want to have $222k rulings like the one the RIAA got from Tanya Anderson come out of my tax money because someone in the state government actually infringed something. If anything, they should pay (assuming they actually infringed to begin with, of course--I do not believe Tanya Anderson infringed).

And there's the matter of the RIAA's war against universities over student infringement. I'd hate to see what they could do if this had gone the other way and they had found some way to combine it with other laws to hold the state universities liable for student (or even faculty) infringement.

I don't doubt that they would demand unreasonable settlements if they found the chance.

In short, that's why I think this is a good thing.

Re:Why I am glad for this ruling. (1)

Uart (29577) | more than 6 years ago | (#23138784)

They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.

Illegal acts are automatically outside protection (1)

Xenographic (557057) | more than 6 years ago | (#23138946)

> They can only sue the individual state employee under this decision IF that employee was not acting in an official capacity.

Yes, but the minute you do something illegal, you're outside your official capacity, so by infringing, they give up their immunity due to their position. So we're right back to "you can sue the person, but not the state" again.

The article discusses that exact point, but I don't blame anyone for missing it :] IANAL, and this is a complicated mess, but that's one of the few things I'm clear on.

So in summary (1)

pebcak (773787) | more than 6 years ago | (#23138254)

The state creates one set of rules for itself, and another for everyone else. How is this a good thing?

Re:So in summary (1)

Compulawyer (318018) | more than 6 years ago | (#23138298)

No one said it was a good thing. However, it is the way it has been (at least in the US) ever since we were colonies of Great Britain.

This subject is VASTLY more complex than you know (5, Insightful)

CajunArson (465943) | more than 6 years ago | (#23138272)

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 for all you rabid anti-copyright types: This basically means that the federal gov. is not allowed to take away a state's immunity from private suits over copyright. From what I can tell, it is 100% in line with the (admittedly fubarred) reasoning used in prior case history on this issue. The 14th amendment has precious little to do with copryight, since copyright is already enumerated in Art I section 8. Because it is in the ORIGINAL constitution, it is structurally assumed that it does NOT give Congress a power to abrogate state sovereign immunity, or else there would have to be some textual indication that it was intended to do so.

    So: Unless a state specifically says that it may be sued in federal court over copyright infringement by its own employees (and that is a matter of state law), then no suits!

Re:This subject is VASTLY more complex than you kn (2, Interesting)

belmolis (702863) | more than 6 years ago | (#23138370)

Nice exposition. One further detail: a state can be sued in state court for violation of its own constitution.

Re:This subject is VASTLY more complex than you kn (2, Interesting)

Compulawyer (318018) | more than 6 years ago | (#23138378)

This case has NOTHING to do with copyrights whatsoever.

Actually, it does, albeit somewhat tangentally. Copyright is an exclusively federal cause of action. 28 U.S.C. sec. 1338(a) [cornell.edu] . 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.

Re:This subject is VASTLY more complex than you kn (1)

Uart (29577) | more than 6 years ago | (#23138760)

Here is a question for you though... is there constitutional authority for Congress to revoke jurisdiction of state courts?

Re:This subject is VASTLY more complex than you kn (1)

HungSoLow (809760) | more than 6 years ago | (#23138516)

Is it just me or does all this legal mumbo-jumbo seem so very pointless?

Re:This subject is VASTLY more complex than you kn (2, Funny)

kcbrown (7426) | more than 6 years ago | (#23138524)

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.

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) ..."

No (1)

PingXao (153057) | more than 6 years ago | (#23138330)

Why do I get the feeling this is one of those stories where TFA doesn't say what the poster thinks it says? Yep. Confirmed. I knew it before I even read the comments.

Don't be too quick to judge... (1)

Xenographic (557057) | more than 6 years ago | (#23138674)

IANAL, but actually, there is a link between this and the RIAA's war on piracy, though it's a bit thin. To be more exact, had this gone the other way, it could have been a tool in the RIAA's legal arsenal.

You may not remember, but the RIAA has been after universities (there are plenty of Slashdot stories on that topic). Follow that by the fact that state universities are parts of the state, which are immunized by this ruling. Yes, it appears to allow them to still sue INDIVIDUALS (through more convoluted means), but they can't go after the state, which has all the money.

Instead, the RIAA has been going after university funding by threatening the funding of any institution that doesn't promise to do things like RIAA copyright 'education', or buying their crappy music services which they then force the students to use.

So it's a weak link, but it's still something that could be important.

Glad that a CERTAIN PORTION of the law is gone (1)

Jane Q. Public (1010737) | more than 6 years ago | (#23138362)

Granted that certain recent portions of copyright law, like the recent addition mentioned in TFA, and (most definitely) DMCA are outrageous and abusive.

But that does NOT mean that "copyright law", in general, is bad. It is not. It is essential to the healthy functioning of a free society. In fact, if you read the Constitution, you will see that the abilities to copyright and patent were expressly provided for in order to further the general public good.

If you read your history, you will see why this is so. Artists (including authors and other writers) and inventors must be encouraged, which means they must gain from their works... to a certain degree. Societies in which citizens did not gain from their own original works, in other words societies that put all such works immediately into the public domain, have never prospered.

On the other hand, copyrights were never intended to be all-inclusive or to last forever, which has been the recent abusive and destructive trend.

Just keep in mind that abuse of a concept does not mean that the concept is bad. It just means that just like most other concepts, it can be abused by bad people.

Re:Glad that a CERTAIN PORTION of the law is gone (1)

Anonymous Coward | more than 6 years ago | (#23138578)

Societies in which citizens did not gain from their own original works, in other words societies that put all such works immediately into the public domain, have never prospered.
That's a very interesting claim. What examples do you (or anyone else participating in this thread) have to back it up?

Re:Glad that a CERTAIN PORTION of the law is gone (0)

Jane Q. Public (1010737) | more than 6 years ago | (#23138734)

Since you chose to challenge the claim, it is up to you to find a counterexample. I am not inclined to do your homework for you.

The wrong way to argue a decent point... (2, Informative)

Xenographic (557057) | more than 6 years ago | (#23139004)

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...

Copyright "essential" (1)

thoglette (74419) | more than 6 years ago | (#23138804)

Copyright... is essential to the healthy functioning of a free society.

Pig's Arse.

I'd put it that the framers of the constitution recognised that copyright was a scam much more often than a benefit (like most Royal Warrants, Concessions and Commissions) and expressly limited it to cases where it would actually further the general public good.

A blow to copyright? (1)

ruin20 (1242396) | more than 6 years ago | (#23138376)

My understanding of the ruling is that it this part of the law was struck down on accounts that it was unconstitutional because it tried to usurp a power that is granted by the constitution. The ruling has little to do with actual copy right reform.
Essentially nothing was really gained here in the reform process, we just got lucky that an invalid law was repealed and it happened to be a copyright law.

this Court finds Congress intended to abrogate State's immunity through Enactment...However, this Court finds that CRCA was not passed pursuant to a valid exercise of Fourteenth Amendment enforcement powers.

Possible Loophole (0)

Anonymous Coward | more than 6 years ago | (#23138510)

FTFA:

The Court [ruled] that a[n] employee of a State (acting within his or her official capacity) . . . cannot be held liable for copyright infringement.

Yay, I finally have a legal excuse to run my bittorent client loaded up with warez and movie screeners 24/7. I just need to find a state job in California, and leech "within my official capacity."

This is old news (3, Informative)

nenya (557317) | more than 6 years ago | (#23138648)

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.

A win for soveriegn immunity (1)

theophilosophilus (606876) | more than 6 years ago | (#23138650)

First this is just a motion to dismiss in a district court - talk to me if the 9th Circuit Court of Appeals gets it.

This opinion is about sovereign immunity, the legal theory that states cannot be sued. For all the Federalists in the room this may be a good deal. For those that would like to see less protection for intellectual property - this isn't your decision.

Sovereign Immunity has actually created state funded patent trolls. California schools are financially exploiting patent law by patenting technology and enforcing patents vigorously. When the schools are themselves sued, they raise sovereign immunity. See Critics Take Aim at California's Patent Shield The Wall Street Journal November 13, 2007 Tuesday, B1
Sorry, no link, I had to pull this off Lexis.

I haven't researched this theory but this holding may have little effect, intellectual property can be "taken" for purposes of the Fourteenth Amendment. See Ruckelhaus v. Monsanto, 467 U.S. 986, 1001 (1984). Sovereign Immunity is not a shield to a takings claim.

As much as Copyright Law sucks... (1)

VGPowerlord (621254) | more than 6 years ago | (#23138866)

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.


As much as Copyright Law sucks, there are some parts of it that I'd be quite upset if they struck.

Fair Use to name one. Limited Immunity for ISPs (one of the few or only good things to come out of the DMCA) to name another.

A Hopefully Not Too Longwinded Explanation (5, Informative)

spiritraveller (641174) | more than 6 years ago | (#23138878)

Every law passed by Congress must be authorized by some language in the Constitution. Most of the Copyright Act is authorized by the Copyright Clause, which allows Congress...

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The doctrine of Sovereign Immunity does not come from the original text of the Constitution. It comes from an amendment. The 11th Amendment prevents states from being sued for anything that they do not consent to be sued for. If you get hit by a truck driven by a state worker, your state probably allows itself to be sued for that sort of thing. But your state probably does not allow itself to be sued for copyright infringement.

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.
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