Mary Minow writes that a significant part of the Copyright Remedy Clarification Act of 1990 (CRCA) has been struck down by a California Southern District Court ruling.
In 2006, a marketing research firm sued the CSU system. It alleged that San Diego State University, which had been hired in 2004 to perform annual fiscal impact analyses for the Holiday Bowl games (SDSU had been hired because the marketing research firm, which had performed the analyses previously, had increased its fees), had misappropriated and plagiarized the marketing research firm’s earlier reports.
The CRCA reads, in part, that “Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State … shall not be immune, under the Eleventh Amendment … from suit in Federal Court … for a violation of any of the exclusive rights of a copyright owner ….”
In theory, this means that states are now in the clear from being targeted by the federal claims that the CRCA was worded to allow. As the District Court ruling states, “The CRCA was passed with the intent to subject states to liability for copyright infringement.”
The major wrinkle is that the ruling appears to protect only state agents or employees who are acting in their “official capacity.” As Minow’s post points out, there are any number of steps that a plaintiff could take to establish legally that a state employee was not acting in his or her “official capacity.” The most germane step would be that an individual sued under federal law (and the CRCA being federal law) can be classified as having acted in his or her “individual capacity” if the plaintiff can establish that an alleged violation was in contravention of protected federal copyright.
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.