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Items of interest on the Fairly Used blog at the Stanford Copyright & Fair Use page:
1 - Oregon Legislative Counsel asks Justia to take down Oregon Revised Statutes (I'm not kidding)
2- Interview with our own Peter Hirtle on Section 108 Committee report - the good and the bad for libraries wrt copyright
3- Follow up interview with Jonathan Pink about the California State Univ copyright case on state sovereign immunity
From Stanford's Fairly Used Blog:
Quick conversation with Jonathan Pink, partner at Lewis Brisbois Bisgaard & Smith
Minow: Could you tell us about the new decision about the state university professor who was sued for copyright infringement?
Pink: The case is Marketing Information Masters v. The Trustees of the California State University. [.pdf] For several years prior to the suit, the Pacific Life Holiday Bowl had hired Marketing Information to calculate the fiscal impact the Holiday Bowl (college football game) had on the City of San Diego. When Marketing Information tripled its fee, the Holiday Bowl hired San Diego State University to conduct the 2004 survey, but instructed the school to follow the format of earlier years.
When San Diego State delivered its 2004 report to Pacific Life, Marketing Information obtained a copy and cried foul. Marketing Information alleged that in creating the 2004 report, the school and one of its professors had copied large portions of Marketing Information's 2003 report.
The Trustees and the professor filed a motion to dismiss, claiming that the Eleventh Amendment provided them with immunity to a claim for copyright infringement. While Marketing Information argued that the Eleventh Amendment did not apply because Congress passed the Copyright Remedy Clarification Act which expressly provided that "[a]ny State, instrumentality of a state... or employee of a State or instrumentality of a State... shall not be immune, under the Eleventh Amendment" to a suit for copyright infringement. 17 U.S.C. section 511(a), the defendants argued that the Clarification Act was an invalid exercise of Congress's power.
The District Court agreed with the defendants, finding that the Copyright Remedy Clarification Act "was not passed pursuant to a valid exercise of [Congress's] Fourteenth Amendment enforcement powers," and "does not constitute a valid abrogation of state sovereign immunity."
In short, the Court invalidated the Copyright Remedy Clarification Act as unconstitutional, thus ruling that a State, employee of a State (acting within his or her official capacity) or instrumentality of a State cannot be held liable for copyright infringement.
Minow: Do all state employees have immunity for copyright infringement?
Pink: No. The Court's ruling only applies to state employees acting within their "official capcity." This gets a little tricky because a state official who has acted in violation of federal law will be stripped of his or her "official" character and will not be immune to suit under the 11th Amendment. Thus, for example, in the Marketing case, plaintiff may not seek damages against the professor in his official capacity as that it would violate the state’s sovereign immunity under the 11th Amendment, but the professor likely would be "stripped of his official or representative character" and would be "subjected in his person to the consequences of his individual conduct" if plaintiff can show that the professor violated plaintiff’s federally protected copyright. In other words, a state employee will be subjected to suit in his or her individual capacity even though he or she had been acting as an agent of the State if it is shown that the employee's conduct was ultra vires his or her delegated authority, e.g. by violating a federal law.
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Jonathan Pink represented the defendants in Marketingn Information Masters, Inc. v. The Board of Trustees of the California State University System, et. al. (06cv 1682 JAH, SDCA February 5, 2008). Pink is a partner at Lewis Brisbois Bisgaard & Smith.
Mary,
Just thought I'd let you know about another subpoena we received for patron circulation records. If you recall, the last time I received a subpoena and challenged it, I was surprised to learn that this one of the first times in Florida a motion to quash a subpoena for library records had been filed.
In this case, we asked the State Attorney (in a different judicial circuit) to rescind the subpoena and provide a court order. The State Attorney had no problem with the request and within 3 weeks we had a court order directing us to turn over information.
This was different than our previous situation where we had to file a motion to quash and then have a judge direct me to release records.
It seems, despite the reluctance from our own city and county attorneys to challenge subpoenas, State Attorneys are willing to follow a process to ensure the protected information they request is obtained without the possibility of appeal.
Best wishes,
Sol
Sol M. Hirsch, Director
Alachua County Library District
------------------
From: Mary Minow
Sent: Friday, April 11, 2008 12:56 PM
To: Sol Hirsch
Subject: RE: Another Subpoena for Records
This is a great story. Was it really circ records or was it internet use records? Just curious, but do you know what the case was (esp was it trying to establish a time/place for a suspect, or was it centered on the content of the items circulated)?
I'd love to post this on my blog. May I? As is?
Best,
Mary
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Mary,
The request was for circulation records only seeking titles and dates checked out and returned. We couldn't comply with the request for the entire time period (one year) because we purge satisfied circulation transactions quarterly. We had about 5 months worth of circulation records available.
Too bad we may lose the person as a patron. He checked out a lot of materials and returned them all on time!
No problem with placing it on the blog.
Best wishes,
Sol
Sol M. Hirsch, Director
Alachua County Library District
Join
us Tuesday, April 29, 2008 (11 a.m. Pacific | 12:00 p.m. Mountain |
1:00 p.m. Central | 2:00 p.m. Eastern), to discuss the recently
released Section 108 Study Group Report, an independent report
sponsored by the U.S. Copyright Office and the National Digital
Information Infrastructure and Preservation Program of the Library of
Congress. ACRL OnPoint is a live series of informal monthly chat
sessions that provide the opportunity to connect with colleagues and
experts to discuss an issue of the day in academic and research
librarianship. [collib-l]
Suggested background reading:
NOTE: All ACRL OnPoint chats are free and open to the public.
Sessions are unmoderated, 30 to 45 minutes long, and take place in a
Meebo chat room. All chat sessions begin at 1 p.m. (CDT). While no
registration is necessary to participate, ACRL recommends creating a
quick and easy Meebo account for the best experience while
participating in ACRL OnPoint discussions. Full details are available
on the ACRL Web site at www.acrl.org/ala/acrl/acrlproftools/OnPoint/onpoint.cfm.
via Beyond the Job, and brought to LibraryLaw's attention by Paige Fujisue.
Copyright for Librarians: a Distance Learning Course: expert meeting
April 17-18, 2008 sponsored by Harvard's Berkman Center for Internet and Society and eIFL
More at blogs.law.harvard.edu/copyrightforlibrarians/. See also research opportunities.
Registration is closed, but library copyright folks will still be interested in following the blog.
Nolo podcasts features Library Law at http://www.nolocast.com/?p=120
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