Texas Appeals Court Says Government Can't Be Sued For Copyright Piracy (petapixel.com) 107
sandbagger writes: Photographer Jim Olive's helicopter shot of Houston was used by the University of Houston on their website after they removed his watermark, a definite no-no particularly since the image was used for their school of business. The photographer then sent the university a bill for $41,000 -- $16,000 for the usage and $25,000 for removing his copyright credit. After the matter ended up in court, the university pushed for the case to be dismissed because the public institution has sovereign immunity, which protects state government entities from a variety of lawsuits and the appeals court agreed. The matter will likely go before the Supreme Court (in Allen v. Cooper) sometime in 2020. "Even if the government sets itself up as a competitor by producing a copyrighted work, there probably is not good reason to conclude automatically that the copyright has been 'taken,'" the three-judge panel cites in its ruling. "The copyright holder can still exclude all private competitors even as the government pirates the entirety of his work."
"[W]e hold that the Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable," the ruling continues. "This opinion should not be construed as an endorsement of the University's alleged copyright infringement, and as discussed, copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement. Instead, in the absence of authority that copyright infringement by a state actor presents a viable takings claim [...] we decline to so hold."
The National Press Photographers Association (NPPA) notes that the U.S. Congress passed the Copyright Remedy Clarification Act (CRCA) decades ago to prevent states from having governmental immunity from copyright claims, but some appeals courts have held that CRCA goes beyond Congress' powers and have therefore struck it down as unconstitutional.
"[W]e hold that the Olive's takings claim, which is based on a single act of copyright infringement by the University, is not viable," the ruling continues. "This opinion should not be construed as an endorsement of the University's alleged copyright infringement, and as discussed, copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement. Instead, in the absence of authority that copyright infringement by a state actor presents a viable takings claim [...] we decline to so hold."
The National Press Photographers Association (NPPA) notes that the U.S. Congress passed the Copyright Remedy Clarification Act (CRCA) decades ago to prevent states from having governmental immunity from copyright claims, but some appeals courts have held that CRCA goes beyond Congress' powers and have therefore struck it down as unconstitutional.
exemption from copyright (Score:5, Insightful)
If the want to claim exemption from copyright then it should be BOTH ways, and NOTHING from that university can be copyright or patented.
You know, things like course notes, books, anything staff create, etc etc etc.
Re: (Score:2, Interesting)
Take the phrase "should be" and throw it straight in the garbage. It has zero relevance to this issue.
Morality, fairness, etc, will NOT ENTER into any legislation or legal proceedings surrounding copyright law. Period. Information is now the essential currency of power. Every powerful entity wants control over it, as badly as Sauron wants the ring of Mordor. They will say whatever they think furthers their own grip on it. They will do anything and everything they think they can get away with in order
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> GPL, which is supposedly an open source license, is so incredibly restrictive in the first place
WTF are you talking about?
Only a whiner complains about a FREE GIFT of other people's work -- that they can't hijack -- and thus call it "restrictive."
*facepalm*
> which is supposedly an open source license
Stallman uses the term Free Software [gnu.org] because the GPL predates the term "open source." Allegedly [opensource.com] Christine Peterson coined the term open source in 1998.
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They cannot relicense (the government cannot claim ownership) but they do not have to abide by the terms although that's a bit of an oxymoron since tax funded efforts by the government to produce something has to be made available to the public.
So they have to release their modifications to the code in public domain while your code would still be under GPL.
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I completely agree; I am fine with “non commercial” use of copyrighted material, but their school is acting in a commercial capacity. Alternately you just need another state to duplicate all their material and then copyleft it.
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Public research cannot be sold or granted to private organizations.
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Public research cannot be sold or granted to private organizations.
Cool. Please tell the pharmaceutical industry about this and let us know how that goes.
Re:exemption from copyright (Score:5, Interesting)
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It's one thing for the government to do something, but I would argue a university is not the government even if it is wholly government funded.
Ok, I was with you till the end (Score:2)
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It's the government, that is already the case. The government cannot copyright anything, anything they produce is per definition paid for by the public and thus belongs to the public, that includes government-funded Universities and federal grant funded research.
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Then why can't people use school's logos/mascot without being sued into oblivion?
Case in point: A local state university's mascot was used to promote a dorm floor. The university threatened the students with fines and probation if they didn't stop doing it. They're only logic, "We own the copyright. You need a license. You want it, you buy it."
This was 20 years ago. And the university is using this bullying tactic to this day.
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I would like to point out an important exception: The federal government cannot copyright anything, but government contractors can. A lot of private sector companies do work for the government. This is important to remember when dealing with things like public service announcements, training materials, even maps. Additionally, this is federal only: States still hold copyright in anything their government produces.
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Actually, better than that, China is vindicated.
Next time the USA wants to mention intellectual property theft, China can say that under US law there is no theft, but thank you for playing.
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From the Nixon screenplay (Score:2)
*If the government does it, it's not illegal*
Intellectual honesty (Score:5, Insightful)
Re:Intellectual honesty (Score:4, Interesting)
If a university can so blatantly not give a toss about cheating when its themselves doing it, they cannot blame students if they start doing the same.
So the next step is that the university sets up a torrent/MegaUpload/streaming site, all with pirated material that costs them nothing. Charge $5 per month.
And then a group of students will setup a coop site for $4 per month.
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The university has to set the example in all of its activities.
You know, sometimes it's best not to follow the example. That choice is available. So yeah, you can blame the students, especially ones that old. The students can an example also, instead of playing *monkey see, monkey do*.
The kindergarten has to set the example in all of its activities.
There, fixed...
Don't even bother hiding it. (Score:5, Insightful)
Just let everyone know that a government "For The People, By The People" is above the law now. However, this is not some sort of secret either, it has been a long time coming.
What I love most is that people just keep asking to give government more power while they sit there bemoaning the abuse of that power.
When you give government power, you need to treat that process as though you are giving your enemy that power, because that is what Governments become shortly after they are formed. Enemies of the people masquerading as their saviors. The only goal of government is to gain more power and remove liberty. The only difference between governments is that each has a different idea about how society should operate for it to gain the power it needs to fulfill its objective.
"For the greater good"
The excuse that has brought more tyranny, suffering, and oppression than anything else. Every government uses this excuse, every religion uses this excuse, every "scumbag" uses this excuse!
And "For the greater good" the government will have its own laws for itself and different laws for you!
Moonshiners. (Score:1)
Have been around since the founding of this country. The Whiskey Rebellion and the moonshining movement in the years since have been about rebelling against the first unfair tax in America, which allowed factories to produce liquor under a 'maximum flat tax' while the impossibly smaller subsistence farmers out west were taxed at a higher rate and without the benefits of a flat tax cap they could hit (I forget if they were also capped on the maximum amount of production, or just incapable of higher quantitie
When the cockroaches come out of the walls... (Score:1)
When the cockroaches start coming out from behind the walls and in the open, it means they are starting to get a little too confident.
Like you said, these bastards don't even bother pretending that they are moral, decent human beings anymore.
I hate to bring up the "blood of patriots and tyrants" thing, but someday, something is going to have to be done about it.
Re:When the cockroaches come out of the walls... (Score:4, Interesting)
"The Tree of Liberty must be refreshed from time to time with the blood of patriots and Tyrants. It is it's natural manure"
~Thomas Jefferson
Most people fail to understand how deep this quote is. This quote is not just about people rebelling against government. It is about the people themselves having enough liberty that others are more able to hurt others when things get out of control. It is about people having enough liberty to challenge their oppressors be it government, business, gangs, or your next door neighbor.
The moment you have decided that someone else must suffer or labor under a rule or law order for you to "feel" safe, especially before you are even threatened by them, then you are a tyrant. You do not need to be in power to be a tyrant, only need to attempt to oppress others to become one.
Many people would do well to read the Letter Jefferson Wrote to William Smith which this quote comes from.
http://www.let.rug.nl/usa/pres... [let.rug.nl]
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The constitution defines the bounds of the govt... if it is operating outside of those bounds it is not a legal institution any longer
I hate government too! (Score:2)
Down with government!
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Government is not the problem, it is a symptom.
The people need to go to government and let it know that it no longer gets to have this power now that it has abused it. The problem is that you cannot get the people to remove themselves from complacency because of fear that the government would rather kill it's citizens than do justice to them or for them.
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And "For the greater good" the government will have its own laws for itself and different laws for you!
Of course: "The needs of the many (Government) outweigh the needs of the few. (ie, you.)"
If you're not PART OF or rooting FOR the government, you're part of the terrorism.
Comment removed (Score:5, Insightful)
Single act? (Score:5, Informative)
Why is it considered "a single act of copyright infringement by the University", and not multiple acts for every time the copyright work is reproduced by the university as it pushes a new copy downstream onto a user's computer to display (i.e. for every website request a new copy is made)?
Re:Single act? (Score:5, Informative)
The number of reproductions may affect where within the $0 to $150,000 current max range the court decides to fine you. But "a single act of copyright infringement" is the correct term here, since only a single photo was reproduced.
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Irony of the day: University of Houston has a link on its own website for reporting copyright infringement: "To report copyright infringements on the web sites of the University of Houston System or the web sites of any System University..."
http://www.uhsystem.edu/copyri... [uhsystem.edu]
FYI this http://www.uh.edu/undergraduat... [uh.edu] might be
School Systems Rejoice (Score:3, Interesting)
I work for a school system...looks like we can quit paying license fees for software and quit buying videos. We're going to need storage...lots of storage...
Re:School Systems Rejoice (Score:5, Informative)
The court specifically said they can yell at you and get an injunction to stop you. They just have no way to sue you or collect any money from you.
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The cost of an injunction may be higher than the cost of the license. Excuse me while I hit the torrent sites.
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I think you meant to say that the cost of the injunction (to you) may be less than the cost of a license. And you probably meant the cost of defying the injunction. You should know that defying an injunction can get you a "fun" trip to a local jail.
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Pretty much. Guess software vendors are going to have to go back to 'selling' software (to own), not just 'granting' a license (to rent) since the government cannot seize property.
What about textbooks? (Score:3)
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Re: Any guesses? (Score:1)
They have lawyers on staff. If you knew what they'd be working on if this case wasn't being fought then you could work out an opportunity cost but there are no extra 'fees' being paid.
SAD (Score:2)
I guess the US can't complain about China anymore. So sad.
Not unexpected (Score:5, Informative)
Okay, so there are several different things going on here to produce this result.
First, in 1793, only a few years after the Constitution was first ratified into law, the US Supreme Court decided their first important case: Chisholm v. Georgia. The state of Georgia was being sued in federal court for failing to pay someone that had sold it supplies with which to fight during the Revolutionary War. Georgia claimed that as a sovereign state, it could not be sued without its consent (this idea of sovereign immunity is an ancient one in our legal tradition, the idea originally being that the king cannot be sued in the king's courts, since the courts' authority stems from the king to begin with, and cannot enforce anything against him without his consent).
The Supreme Court disagreed, and held that the state could be sued in federal court. This provoked a hell of a response; the states had only a few years prior ratified the Constitution and no one thought that could happen, and they didn't like it one bit. So the 11th Amendment was quickly passed, which says that individuals cannot sue states of which they are not citizens in federal court without the state consenting. And article III never allowed suits in federal court by citizens of a state against that state. (Later, this was limited slightly by the 14th Amendment, but in general it still holds up) .
Meanwhile, in 1790 the federal government passed the first federal copyright law, but copyright suits were generally (originally only) heard in state courts. But by 1873, Congress decided that copyright suits could only be heard in federal court, and state courts were shut out (except for matters where the copyright is tangental).
The problem then is that the only courts that can hear copyright suits cannot hear suits by individuals against states.
This is a well-known issue (it happens with patents too), so the plaintiff tried to get creative. Rather than sue for copyright infringement, which would fail instantly due to the above issue, he sued for inverse condemnation, claiming that the state took his copyright just as if it had taken his land by building a road over it. The suit was brought in state court, since states generally do waive sovereign immunity to certain extents (fundamentally because otherwise people won't lend the state money, and also because it's seen as unjust).
The state court didn't buy it though; they held that the author still owned the copyright, and nothing was taken from him. It's been infringed on by the state, but he can still enforce it against anyone else. Thus, the inverse suit was lost. Frankly, this is the correct answer; he really was not suing for the right sort of issue, he was just trying to find a creative way around his inability to sue in federal court, which is where he needs to be. Even if the federal law were fixed to allow him to sue there, it would still be appropriate to shut down a suit like this in state court that is really copyright infringement, but which is brought as inverse condemnation.
Anyway, he's SOL. There is reason to believe that if states did this kind of thing routinely, the courts would find a way to come down on them, but so long as it is relatively unusual, it's tolerated. Also, it only works on the state government; municipalities, etc. don't enjoy sovereign immunity as they are not states, or arms of the states, even though their authority comes from their states.
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Thank you, I was just about to make my own post explaining this. If I had mod points . . .
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He should sue them for fraud - they're purporting to have permission to use the image and don't.
He should sue them for identity theft - they're pretending they took the photograph, which means they're pretending they're him.
He should firebomb the place. When the law doesn't protect you other means become justified.
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He should have sued the university itself for simple copyright infringement.
The university exists as a legal entity separate from the state government, and thus should be subject to suit. The university is not sovereign.
So they can shoot your dog? (Score:2)
The comments here are bit insant (Score:2)
Lets recall why we have copyright:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
That is from the US Constitution, pretty much the highest authority you can appeal to when arguing a legal matter. Sovereign immunity is also a necessary evil because otherwise any one person could completely thwart the democratic / representative action of society with a single law suit. Many would a
This is a TEXAS specific issue (Score:2)
The photographer sued a state institution in STATE court. Had he sued in FEDERAL court, the issues may have been different, but in the State of Texas you cannot use STATE courts to sue STATE institutions. This is why you see litigation against police litigated in federal courts using federal statutes. Suing governments is very tricky and not at all like suing the person who ran a red light and hit your car.
Perfect (Score:2)
Now, let's have the government pirate drug patents and provide drugs at far more affordable prices
That's just wrong (Score:1)
Single act? (Score:2)
Can nobody read? (Score:1)
The headline is click bait. The finding was not that the University is government exempt. The finding is that the University can't be sued for destroying the viability of the copyrighted material in the market sense. The finding says explicitly that the University can be sued for their infringement but that the University infringement did not effectively destroy all market value. Much less provocative action by the court over a minor point where the plaintiff was just throwing a wide net to see what may wor
Re: re: fist pusst (Score:2, Interesting)
Does this mean schools can use pirated copies of Adobe Acrobat, pirated student textbooks, etc? "Your honor, I had terabytes of pirated crap *because I am a school, and thus above the law*"
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Of course not. Adobe is a rich and powerful corporation, and the textbook publishers have lobbiests and donate massive sums to re-election campaigns.
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Does this mean schools can use pirated copies of Adobe Acrobat, pirated student textbooks, etc? "Your honor, I had terabytes of pirated crap *because I am a school, and thus above the law*"
This came up with the University of California decades ago. The answer is yes.