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

[microlenz(at)earthlink.net]

Similar problems came up in the 70s from the Kent State Shooting. Sueing 
the jackass governor and national guard general required the state of Ohio 
to waive its sovereign immunity...but that's an interesting thought on states 
providing circumvention devices...somehow I don't think it will happen.  


From:           	"doug.hudson" <doug.hudson@cox.net>
To:             	<dvd-discuss@eon.law.harvard.edu>
Subject:        	Re: [dvd-discuss] Hearing on "Sovereign Immunity 
and the Protection of Intellectual Property"
Date sent:      	Sat, 16 Feb 2002 11:51:33 -0800
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 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."
> 
> -dh
> 
> ----- 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)
> >
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=u101
> 98
> >
> > 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
> >
>