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Re: [dvd-discuss] Hearing on "Sovereign Immunity and the Protection of Intellectual Property"

Actually, here's some background on the current soveign immunity controversy
and IP:

Back in 1988, Congres amended the patent act and the trademark act to
specifically waive the sovereign immunity of the states to suit for
infringement of patents, copyrights, trademarks, etc.  This was based on the
14th amendment and 5th amendment (due process, takings clause, etc.)

A few years ago, in a 'brilliant' trilogy of decisions including Alden v.
Maine and the two Florida Prepaid cases just cited on this list, Scalia,
Renqhuist and Kennedy decided that Congress does not have the power to waive
state sovereign immunity except on very narrowly construed 14th amendment
grounds (race discrimination through state action and the like.)  They
decided, among other things, that a state violation of a private party's
patent is not a significant enough violation of due process or a taking to
waive 11th amendment state immunity.

As a result, a state entity can sue a private party for patent infringement,
but the private party cannot countersue without the state's consent.  In
addition, Renqhuist made the incredulous statement that due process is
satisfied so long as the private party can go to the state congress or state
executive and request compensation through "private legislation" or a state
claims court.

This would effectively let a state university copy textbooks to its heart's
content (maybe not that bad a result) but it would also let a state
university, as noted above, sue private parties for patent infringement with
no countersuit by the private party.

What Congress is likely to do (and the concurrence in Florida Prepaid seemed
to suggest) is that they will probably make state $$$ like federal highway
funds, welfare or medicare block grants, or other federal $$ to states
explicitly dependent on each state waiving sovereign immunity to private
lawsuits for IP rights violations.  While there was a 1980s supreme court
decision that said Congress could make highway funds reliant on states
agreeing to raise their drinking age to 21, no-one knows whether the supreme
court will uphold such a funding restriction if the funding is completely
unrelated to the restriction.

There's a whole other issue with foreign countries and sovereign immunity.
(Like South Africa placing mandatory licensing requirements on various AIDS
drug patents, a power traditionally held by every national government --
including the US -- to infringe a patent at will and just pay royalties to
the private party.)

Its interesting to note the interpretation of the 11th amendment given by
Scalia et al. is much broader than the text of the amendment conceivably
supports.  At the same time, they interpret the 14th amdendment to be much
narrower than the plain text.  Oh well.

While this seems off topic, here's how its relevant:  A state agency could
provide circumvention devices to the public for fair use purposes, and it
would likely not be vulnerable under the DMCA as currently enacted.  I could
see many pro-consumer states setting up such an agency, to the disdain of
the "Industry."


----- Original Message -----
From: "Jeremy A Erwin" <jerwin@gmu.edu>
To: <dvd-discuss@eon.law.harvard.edu>
Sent: Saturday, February 16, 2002 10:55 AM
Subject: Re: [dvd-discuss] Hearing on "Sovereign Immunity and the Protection
of Intellectual Property"

> On Saturday, February 16, 2002, at 12:22  PM, Ole Craig wrote:
> > On 02/16/02 at 03:14, 'twas brillig and Jeremy A Erwin scrobe:
> >> On Saturday, February 16, 2002, at 02:26  AM, Larry Blunk wrote:
> >>
> >>>   The US Senate Judiciary Committee has scheduled a hearing titled
> >>> "Sovereign Immunity and the Protection of Intellectual Property" for
> >>> Feb 27 at 10:00AM.  Further details can be found at
> >>> http://judiciary.senate.gov/beta/hearing.cfm?id=169
> >>> Although it's not entirely clear what will be discussed at this
> >>> hearing, I suspect the DeCSS and Elcomsoft cases will likely
> >>> be brought up.
> >>>
> >> IIRC, sovereign immunity can also apply to states. If a state wanted to
> >> be very nice to it's University employees, educational use could be
> >> immune from copyright lawsuits..., as a state can only be sued in it's
> >> own courts, etc.
> >
> > <bitter laugh> Guess I'm SOL, then.
> >
> > Boston pols seem to be doing their damndest to use the state
> > university system and its employees for toilet paper. (Most of them
> > went to private schools, and can't begin to understand why they should
> > fund UMass when there're all these great schools in and around
> > Cambridge, like Harvard, BC, MIT, BU, &etc..)
> >
> Don't have access to Lexis right now, but these cites may be of interest
> Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
> The Eleventh Amendment prevents Congress from authorizing suits by
> Indian tribes against States to enforce legislation enacted pursuant to
> the Indian Commerce Clause.
> "In overruling Union Gas today, we reconfirm that the background
> principle of state sovereign immunity embodied in the Eleventh Amendment
> is not so ephemeral as to dissipate when the subject of the suit is an
> area, like the regulation of Indian commerce, that is under the
> exclusive control of the Federal Government. Even when the Constitution
> vests in Congress complete law-making authority over a particular area,
> the Eleventh Amendment prevents congressional authorization of suits by
> private parties against unconsenting States"
> College Savings Bank v. Florida
> "The Trademark Remedy Clarification Act (TRCA), 106 Stat. 3567, subjects
> the States to suits brought under 43(a) of the Trademark Act of 1946
> (Lanham Act) for false and misleading advertising, 60 Stat. 441, 15
> U. S. C. 1125(a). The question presented in this case is whether that
> provision is effective to permit suit against a State for its alleged
> misrepresentation of its own product--either because the TRCA effects a
> constitutionally permissible abrogation of state sovereign immunity, or
> because the TRCA operates as an invitation to waiver of such immunity
> which is automatically accepted by a State's engaging in the activities
> regulated by the Lanham Act.
> "
> http://caselaw.lp.findlaw.com/cgi-
> bin/getcase.pl?court=US&navby=case&vol=000&invol=98-149