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.
According to an article in today’s Los Angeles Times, the Department of Health and Human Services and the Department of Justice have appealed a ruling from the U.S. District Court for the District of Columbia that would give consumers more access to Medicare healthcare data.
Specifically, the August 2007 ruling, based on a FOIA request and then a subsequent lawsuit by the advocacy group Consumers’ Checkbook/Center for the Study of Services, would have allowed disclosure of a subset of Medicare billing records for four states (Illinois, Maryland, Virginia, and Washington) and the District of Columbia. The information requested would not have contained any patient identifying information, but could have potentially allowed consumers to get more understanding of the operations of Medicare and the Center for Medicare and Medicaid Services (CMS), as well as make decisions about physician expertise and efficiency, according to the Times. As the judge’s decision put it, “The public interest at stake is the interest in obtaining information that would help the public make more informed Medicare decisions and the interest in more information of how government funds are spent.”
However, the American Medical Association opposed the ruling, and has also petitioned to join the appeal. The HHS appeal is based on a 1979 federal court ruling that blocked release of Medicare physician reimbursement data. HHS states that it shares the goals of Consumers’ Checkbook in providing a transparent health care marketplace for consumers, but says that the 1979 ruling conflicts with the 2007 ruling. Observers quoted in the Times article said that the HHS was under pressure from the AMA to keep the data from being released and that it wasn’t just a matter of conflicting legal opinions.
The HHS news release announcing its decision to join the DOJ appeal against release of Medicare data is here.
Last summer’s ruling on the release of the data is here.
Recent statistics released by the University of Michigan’s American Customer Satisfaction Index (ACSI) show that consumer satisfaction with federal government websites and e-government in general have fallen in the first quarter of 2008 as compared with the final quarter of 2007. The score represents the third quarter of decline in consumer satisfaction in a row and is the lowest level of consumer satisfaction with e-government websites in three years.
There are a couple of possible factors in the decline. Consumers seem to be dissatisfied that government websites are not evolving into more than information dumps. Consumers want to see government websites that allow them to do business online, to take care of required paperwork, and to control their experiences of the website — which is something that many commercial websites allow, at least on a limited scale. So far, that is not happening with government websites as much as consumers expect.
Another factor: presidential candidates on the campaign trail are mentioning transparency in electronic government and improving citizens’ experience of e-government either minimally or not at all. Consumers aren’t getting the sense that e-government is a priority, or even a secondary interest, among any of the presidential candidates.