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03-23-2020, 11:00 AM   #1
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New US Supreme Court decision re: copyright and application to State

QuoteQuote:
SUPREME COURT OF THE UNITED STATES
Syllabus
ALLEN ET AL. v. COOPER, GOVERNOR OF NORTH CAROLINA, ET AL.
No. 18–877. Argued November 5, 2019—Decided March 23, 2020

Held: Congress lacked authority to abrogate the States’ immunity from
copyright infringement suits in the CRCA. Pp. 4–17.
(a) In general, a federal court may not hear a suit brought by any
person against a nonconsenting State. But such suits are permitted if
Congress has enacted “unequivocal statutory language” abrogating
the States’ immunity from suit, . . .

But as in Florida Prepaid, the legislative record contains thin evidence of infringement. Because this record
cannot support Congress’s choice to strip the States of their sovereign
immunity in all copyright infringement cases . . .
https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf

03-23-2020, 03:39 PM   #2
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For any members replying, please let's keep this to the copyright implications only, and not political discussion. Thanks
03-23-2020, 03:57 PM   #3
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my only intent was to notify those who are " in the business " and might want to know the latest on the law of copyright in the US

it was not intended on being a solicitation for any political discussion
03-23-2020, 05:21 PM   #4
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What are the repercussions of this? It won't affect me directly, as I am not subject to US laws, but I am curious.

03-23-2020, 05:24 PM   #5
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QuoteOriginally posted by Wheatfield Quote
What are the repercussions of this? It won't affect me directly, as I am not subject to US laws, but I am curious.
briefly, it appears that a state is free to violate copyright and cannot be sued unless it consented to the law suit

https://www.nytimes.com/2020/03/23/us/supreme-court-insanity-defense-race-co...gtype=Homepage

Be advised that copyright is a very specialized area of the law and not one that I was ever qualified to practice in so the above is not offered as a legal opinion nor as legal advice

Last edited by aslyfox; 03-23-2020 at 06:36 PM.
03-23-2020, 05:59 PM - 1 Like   #6
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QuoteOriginally posted by aslyfox Quote
my only intent was to notify those who are " in the business " and might want to know the latest on the law of copyright in the US

it was not intended on being a solicitation for any political discussion
So...without having to wade through the whole document, the gist of the decision is that states are immune from suit arising from copyright violation.


Steve
03-23-2020, 06:05 PM   #7
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QuoteOriginally posted by stevebrot Quote
So...without having to wade through the whole document, the gist of the decision is that states are immune from suit arising from copyright violation.


Steve
unless they agree to be sued [ a State can waive its immunity from suit ]

https://www.nytimes.com/2020/03/23/us/supreme-court-insanity-defense-race-co...gtype=Homepage

Last edited by aslyfox; 03-23-2020 at 06:37 PM.
03-23-2020, 07:39 PM   #8
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QuoteOriginally posted by aslyfox Quote
briefly, it appears that a state is free to violate copyright and cannot be sued unless it consented to the law suit

Back at Work but Not on the Bench, Supreme Court Issues 3 Major Opinions - The New York Times

Be advised that copyright is a very specialized area of the law and not one that I was ever qualified to practice in so the above is not offered as a legal opinion nor as legal advice
Wow. That seems a bit of an overreach.

03-23-2020, 07:40 PM - 1 Like   #9
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QuoteOriginally posted by Wheatfield Quote
What are the repercussions of this?
Specifically for photographers, less than than you might think. The plaintiff tried to claim damages from the state of North Carolina because the state used the plaintiff's video of a sunken wreck (the rights to access sunken wrecks belong to the state) in the state's online content, which is publicly viewable. The plaintiff filed copyrights for their videos, but anyone can file copyrights, just because it is registered does not give it special rights beyond unregistered copyrights. If another private entity had tried to profit from the plaintiff's videos, it would be subject to normal intellectual property rights, but the state of North Carolina is not a private entity.

The plaintiff had successfully claimed in district court that the Copyright Remedy Clarification Act of 1990, which is a federal U.S. statute, specifically abrogated sovereign state immunity, so the plaintiff could sue the state of North Carolina. A court of appeal had overturned the district court judgement and the U.S. Supreme Court basically said that Congress had no right to take away the constitutional rights of states and referred to its previous decision in Florida Prepaid, which involved a federal patent protection act modelled after the CRCA and passed by the same Congress two years later. The plaintiff also argued that he was being denied due process by the state of North Carolina, I have to admit I don't understand the intricacies of why that does not apply in this case, but anyway, the Supreme Court said the same argument was tried in the Florida Prepaid case and was rejected. I won't bother trying to summarize the opinions of the three Supreme Court judges who did not sign on to the Court's opinion, but they all agreed with the Court's decision, their differences involved fine points of the main opinion.

My opinion is that governments are public entities, for obvious reasons, and public entities are not the same as private entities. In the American political system, the judiciary has the responsibility to protect citizens from legislators who don't think through their decisions, especially when one government is making decisions that are deliberately designed to restrict the powers of another government, when it clearly has no constitutional basis for doing so. If the U.S. Supreme Court decides in two separate decisions that the federal Congress was being a bunch of doorknobs, who am I to argue.

So, as far as I can tell, in the United States of America you can take photographs of public property and you have copyrights for those photographs, but if the government decides to use your photographs for public consumption, you can't sue the government for royalties. If the government was deliberately publishing your photographs so you couldn't make any money from the photographs you take, you might be able to argue that this is denying you due process, but if the government stops picking on you, that would be considered a fair remedy and unless the government decides that you deserve some financial compensation, that is all you are going to get.
03-24-2020, 05:50 AM   #10
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thanks for that explanation!
03-24-2020, 07:06 AM   #11
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The intricacies of law are so interesting. but also quite often arbitrary. You can always argue the rules aren't perfect, but they have to be pretty bad before they are worse than no rules. In cases like this where I can't understand the intricacies of the case, you just have to respect the courts decision and realize, to make decisions like that is why we pay them the big bucks.
03-24-2020, 07:19 AM   #12
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QuoteOriginally posted by RGlasel Quote
Specifically for photographers, less than than you might think. The plaintiff tried to claim damages from the state of North Carolina because the state used the plaintiff's video of a sunken wreck (the rights to access sunken wrecks belong to the state) in the state's online content, which is publicly viewable. The plaintiff filed copyrights for their videos, but anyone can file copyrights, just because it is registered does not give it special rights beyond unregistered copyrights. If another private entity had tried to profit from the plaintiff's videos, it would be subject to normal intellectual property rights, but the state of North Carolina is not a private entity.

The plaintiff had successfully claimed in district court that the Copyright Remedy Clarification Act of 1990, which is a federal U.S. statute, specifically abrogated sovereign state immunity, so the plaintiff could sue the state of North Carolina. A court of appeal had overturned the district court judgement and the U.S. Supreme Court basically said that Congress had no right to take away the constitutional rights of states and referred to its previous decision in Florida Prepaid, which involved a federal patent protection act modelled after the CRCA and passed by the same Congress two years later. The plaintiff also argued that he was being denied due process by the state of North Carolina, I have to admit I don't understand the intricacies of why that does not apply in this case, but anyway, the Supreme Court said the same argument was tried in the Florida Prepaid case and was rejected. I won't bother trying to summarize the opinions of the three Supreme Court judges who did not sign on to the Court's opinion, but they all agreed with the Court's decision, their differences involved fine points of the main opinion.

My opinion is that governments are public entities, for obvious reasons, and public entities are not the same as private entities. In the American political system, the judiciary has the responsibility to protect citizens from legislators who don't think through their decisions, especially when one government is making decisions that are deliberately designed to restrict the powers of another government, when it clearly has no constitutional basis for doing so. If the U.S. Supreme Court decides in two separate decisions that the federal Congress was being a bunch of doorknobs, who am I to argue.

So, as far as I can tell, in the United States of America you can take photographs of public property and you have copyrights for those photographs, but if the government decides to use your photographs for public consumption, you can't sue the government for royalties. If the government was deliberately publishing your photographs so you couldn't make any money from the photographs you take, you might be able to argue that this is denying you due process, but if the government stops picking on you, that would be considered a fair remedy and unless the government decides that you deserve some financial compensation, that is all you are going to get.
This pretty much answers all the obvious questions including why the US Government can be sued for copyright and patent claims (yet with severe limits on it and almost never successfully) while states cannot be sued for infringement.
IP and Sovereign Immunity: Why You Can't Always Sue for IP Infringement
03-24-2020, 08:37 AM   #13
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QuoteOriginally posted by aslyfox Quote
unless they agree to be sued [ a State can waive its immunity from suit ]

Back at Work but Not on the Bench, Supreme Court Issues 3 Major Opinions - The New York Times
I wonder if the trial lawyer brought up the idea that the publication by the state was a "proprietary function" for which there is no sovereign immunity, as opposed to a "ministerial function" for which its sovereignty is limited only by constitutional authority. I also wonder whether there's a tort claims act in NC that would allow recovery for an intentional tort. Here's another wrinkle: by having violated the copyright act more than once (the fact that they can't be sued doesn't mean there was no violation) constitutes a violation of the Racketeer Influenced and Corrupt Organizations Act; I wonder whether there might be some recovery under that theory. Finally, I wonder about the idea of suing the person who actually performed the publication of the images; particularly if the "person" is a contractor, and not a government employee or agency.

Oh, and here's the good one: publication of the copyrighted images constituted an "uncompensated taking for public use" for which there is no sovereign immunity.
03-24-2020, 08:47 AM   #14
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QuoteOriginally posted by dlh Quote
I wonder if the trial lawyer brought up the idea that the publication by the state was a "proprietary function" for which there is no sovereign immunity, as opposed to a "ministerial function" for which its sovereignty is limited only by constitutional authority. I also wonder whether there's a tort claims act in NC that would allow recovery for an intentional tort. Here's another wrinkle: by having violated the copyright act more than once (the fact that they can't be sued doesn't mean there was no violation) constitutes a violation of the Racketeer Influenced and Corrupt Organizations Act; I wonder whether there might be some recovery under that theory. Finally, I wonder about the idea of suing the person who actually performed the publication of the images; particularly if the "person" is a contractor, and not a government employee or agency.

Oh, and here's the good one: publication of the copyrighted images constituted an "uncompensated taking for public use" for which there is no sovereign immunity.
Why not give them a call

The appellate attorneys are known and probably could id the trial attorneys

Last edited by aslyfox; 03-24-2020 at 02:34 PM.
03-24-2020, 06:59 PM - 1 Like   #15
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I wish that were a practical idea. But getting past secretaries and paralegals is too hard. And then, the attorneys are too busy to chat, and certainly not for free. I've tried doing that before in cases that I thought were interesting, but it's too much work. I'd rather take pictures.
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