Court: Photographer has no recourse against university copyright infringement
houstonchronicle.com
houstonchronicle.com
It seems like under this precedent the University of Houston could just create their own copies of whatever textbooks they want for their students, potentially even selling those copies.
Not a lawyer or anything, but this is my reading. Since no interstate commerce is happening here, the photographer cannot sue in federal court.
Edit: I think what I wrote above is wrong, having read a link in one of the other comments. All the same, my guess is that states are not going to be skipping payment on Windows licenses and taking on Microsoft in the courts. But they may be able to continue picking on little guys who have no power, as it has ever been.
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” —US Constitution, Amendment XI
The reason that this suit originated in Texas state court is because their legal argument was based on Takings jurisprudence. It's complicated, but IIRC SCOTUS has effectively required that Takings claims against states originate in state court. They do this by way of the so-called ripeness doctrine. A federal court will invariably reject a Takings claim unless you can show that you pursued and failed to achieve a remedy through state administrative and legal processes, and as a practical matter this means pursuing a claim up to the state's supreme court.
Ripeness is not directly based on statute or the constitution. If we're being cynical, it's based on SCOTUS disliking Takings cases, particularly so-called regulatory takings (which arguably describes this case), because they involve difficult, highly contextual line drawing that don't lend themselves to clear-cut legal doctrines. So they basically punt. If we're being kind, they do this because forcing claimants to exhaust all state-based remedies provides a ton of factual evidence and legal arguments that benefits adjudicating such cases at the federal level.
If the claimant here made a simple copyright infringement claim they would have been able to go directly to federal court, and in fact it's rare not to do this. Actually, I think federal courts have exclusive jurisdiction over copyright infringement claims; the scope of 1976 Copyright Act leaves very little room, if any, for copyrights under state law. Except for pre-1976 productions anything copyright-related is basically controlled by federal copyright and therefore you're required to go to federal court.
Again, they had a novel legal argument, perhaps in an attempt to subvert federal jurisdiction, and more specifically to get around whatever Fair Use defenses the university could have made. That's just conjecture, though. I haven't read the case.
EDIT: You're not required to go to federal court for copyright claims simply because the claim is a federal issue. It's because federal statute explicitly gives federal courts exclusive jurisdiction over federal copyright claims.
EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
Terrifying. So the University of Houston claims they can just steal whatever they want?
The only constraint is that the state can allow itself to be sued, and therefore you have some recourse that way.
The courts are generated, and therefore subject to, the executive. It's easy to see how an executive could stack a court (a la Roosevelt). Or simply denying the courts the ability to enforce their rulings and doing whatever (Jackson).
I know the other parts of government are prohibited from being able to get copyright or patents, so that means sovereign immunity makes sense in a heavy-handed way, but allowing both ownership and immunity seems... like having your cake and eating it too.
Who's the judge I wonder...
They directly sued for copyright infringement rather than trying to use eminent domain.
Of course, laws can be repealed.
Fun fact, the government opinion for patents for the government and its contractors is also that the federal government cannot be found to infringe on patents either. At most they say they voluntarily choose to provide reasonable compensation. This especially applies if the use of a patent is deemed to be in the interest of national security.
Nobody can overrule the federal government's SI, meaning the federal government cannot be sued for any reason unless it agrees to be sued and forfeits SI in that case.
How do people not know this?
Sounds like a job for the state legislature to handle - writing out an exception to immunity for infringement. Otherwise why would anyone bother attempting to do licensed work in Texas at all?
Many would be eventually ruled as fair use but that requires a judge to make a judgement as to the fair use factors. SI just requires the judge to see that it is the uni of Texas.
The uni doesnt care about the photographers licence fee. It cares about not getting by a phama company because a researcher happened to use a chemical that was under patent.
Could they post full feature films on their websites?
In the UK this is neatly seen by the Queen being immune, and not needing any documents. After all, why would she need a document asserting that she gives herself the right to drive? She can just say so to the cop that pulls her over. Except the cop cannot pull her over if he knows she's the driver.
Even the constitution is subject to the sovereign, if you think about it, since it is meaningless without the sovereign but the sovereign is not meaningless without the constitution. It's a bootstrapping problem, after all. Why is the constitution valid just because a bunch of blokes signed it and one you sign is meaningless? Because they, the winners of the Revolution, the folks in charge of the militias, the de facto sovereigns at the time, signed it.
The photographer for some reason did not pursue this as a copyright infringement claim. Instead he argued that it was an eminent domain case where the state had seized his private property and was, according to Texas state law, required to compensate him for the seized property.
It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs for filing a frivolous case.
Instead they oddly ruled instead that the school has sovereign immunity from lawsuits, and ordered him to pay their costs.
It is strange if the state can not be held accountable in court for eminent domain seizures despite the state law to the contrary.
It is strange that they ruled that way rather than ruling that copyright infringement is not a domain seizure.
It is strange that the plaintiff filed this case this way.
I recognize why this exists, but I can't help but wonder why people working in government are so prepared/eager to defend the actions of the government or avoid admitting wrongdoing at any cost. Just admit, 'hey, yeah, we should have paid. We aren't required to because, like, immunity, but it would be the right thing to do. Here's some money.' and move on.
Or when cops and DAs use some sketchy means of doing something good, like stingrays. Is there no sense of, hey, maybe we shouldn't have this power. We should self-regulate or get legislation made. It's not even against self-preservation as those tools made them better at their jobs, in theory, reducing the need for more people.
I just feel like the people in our government, at all, levels, could be more honest.
Politics makes me sad. :(
There are many well known copyright claims against public universities. The one that immediately came to mind (I forgot the case citation) would have supported his infringement claim, though it involved xerox'ing of academic textbooks so not quite on point.
See my post elsethread for the most likely reason they went to state court.
I could see how it would not be the state if it were separately incorporated, funded, and governed, just like a municipality.
So what's the rule that distinguishes entities that have sovereign immunity from those that don't?
Use of this specific photograph is not required by any means that could be seriously construed.
It answers the question of when state sovereignty protects state activities from federal regulation. Questions of when a person can directly sue a state or state entity under federal law and what types of remedies might be available are different, but I'm pretty sure you can find your way to cases that explain those in Garcia's citations (the actual case, if not from the Wikipedia article). I can't remember any good ones off-hand, and sadly I can't articulate a way to frame the issues that would help finding them.
TL;DR: if an individual employee can sue a state transit agency to enforce federal minimum wage, then I can't imagine of any reason sovereign immunity would categorically prohibit enforcing copyright against a public university, especially considering that regulation of copyright is one of the few enumerated powers of the Federal government.
EDIT: It gets complicated. Apparently the scope of https://en.wikipedia.org/wiki/Seminole_Tribe_of_Florida_v._F... evolved into something much more strict than I thought. I remembered it as simply prohibiting the federal government from being able to force the state to do something in particular, like negotiate with the tribe or, in related cases, pay damages, as opposed to enjoining something. See https://www.copyright.gov/docs/regstat72700.html. OTOH, see https://en.wikipedia.org/wiki/Central_Virginia_Community_Col.... I'll stop giving my opinion....
EDIT EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
The reason is that state institutions have sovereign immunity from copyright infringement lawsuits.
>Instead he argued that it was an eminent domain case
His only recourse was to argue that the infringement was an unconstitutional exercise of government power and sue on constitutional grounds rather than statutory grounds.
>It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs
According to the article, that's what the court did.
>Instead they oddly ruled instead that the school has sovereign immunity
The article doesn't say that.
>It is strange if the state can not be held accountable in court for eminent domain seizures
It can be, but copyright infringement is a tort, not a property transfer, so not covered under the takings clause.
>It is strange that the plaintiff filed this case this way.
It was his only option if he wanted to present his case in court.
Federal courts disagree; in Cambridge University Press v. Patton, they did a work-by-work fair use test, and Georgia State University was found infringing on four counts.