Are States and State Employees Immune from Copyright Suits?

A February District court case in California invalidated part of US copyright law. The particular statue is the following:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

In the case Marketing Information Masters v. The Trustees of the California State University, the Pacific Life Holiday Bowl (organization that puts on the Holiday Bowl football game) had hired the plaintiff company in the past to undertake a survey to show the economic impact of the game on its home of San Diego. When the company tripled its fees for the 2004 survey, the organization instead turned to San Diego State University to instead do the research.

Given a copy of the previous work, the school had been told to use the same format of layout - which is something that has a copyright. The school did, the company found out, and it sued the university trustees and the professor, both of whom filed a motion to dismiss the suit under the 11th Amendment of the U.S. Constitution, which states:

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.

The company argued that the part of copyright law at the top of this post precluded such a defense. The court ruled that part of the law unconstitutional because, essentially, the Constitution generally trumps legislative attempts to specifically limit it.

Does that mean if a state uses your work without asking, you are out of luck? Not exactly. Although the deep pockets of the state itself may be off limits, state employees are only protected to the extent that they are acting within their official capacity. If they infringe copyright, they are breaking the law, and if they are breaking the law, they cannot be acting within their official capacity, so you would sue the individual.

House Attempts to Change Copyright Protection

There's a bill in the U.S. House, sponsored by John Conyers of Michigan (D) and Lamar Smith of Texas (R), that, according to PC Magazine:

would further crack down on intellectual property violations, and create several new government positions with the power to enforce the new law.

Bill H.R. 4279 would create a special section in the Justice Department to deal with copyright violation and some provisions would add substantial powers to punish copyright violators, like seizing:

"any property used, or intended to be used, to commit or facilitate the commission of a violation … that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation."

The DOJ is not fond of the measure, as it would force how they handled copyright infringement prosecution, though many business groups, particularly in movies and music, are soiling themselves in their collective excitement. But I'm not sure if the squeals of delight would continue if they thought through the problem and considered whether their own property might be impounded if they were violating copyright. Can you say massive numbers of web and database servers? But I suspect it's an issue of the sheerest optimism to think that any writer could get the powers that be to turn these penalties onto the business forces that lobby so heavily.

I also find it interesting that Conyers is involved. Could this be his mea culpa for sponsoring that bill, at the behest of the NWU/UAW, that would have allowed writers to take part in collective bargaining?