The Supreme Court Says States Cannot Be Sued For Copyright Infringement (petapixel.com) 122
sandbagger shares a report from PetaPixel: The Supreme Court of the United States dealt a major blow to photographers' copyright protections when it declared that states cannot be sued for copyright infringement because they have "sovereign immunity." The opinion came down as part of a writ of certiorari regarding the case of Allen v Cooper. A writ of certiorari is basically a review of a lower court's decision, and in this case, the Supreme Court has upheld the decision by the Court of Appeals for the Fourth Circuit, which decided that states are immune from copyright infringement lawsuits.
The case began in 2013, when videographer Frederick Allen sued North Carolina for using his videos of the salvage of Queen Anne's Revenge, a shipwreck discovered off the North Carolina coast in 1998, without permission. The state claimed "sovereign immunity," and though they initially lost this argument in the Eastern District of North Carolina, the US Court of Appeals for the Fourth Circuit reversed the ruling. Allen appealed one final time, which is how we ended up with today's decision by The Supreme Court.
In essence, the Supreme Court agreed with the Fourth Circuit, ultimately striking down the Copyright Remedy Clarification Act (CRCA) of 1990. This 30-year-old amendment to the Copyright Act of 1976 tried to strip states of their sovereign immunity where copyright was concerned, and it was at the core of Allen's lawsuit. If states can't claim sovereign immunity to get out of copyright infringement, then North Carolina had no defense. Unfortunately, the Supreme Court agreed with the Fourth Circuit, stating that Congress lacked the authority to take away State's immunity in the CRCA, passing the buck back to Congress and giving states carte blanche to infringe with impunity (or, as it were, immunity).
The case began in 2013, when videographer Frederick Allen sued North Carolina for using his videos of the salvage of Queen Anne's Revenge, a shipwreck discovered off the North Carolina coast in 1998, without permission. The state claimed "sovereign immunity," and though they initially lost this argument in the Eastern District of North Carolina, the US Court of Appeals for the Fourth Circuit reversed the ruling. Allen appealed one final time, which is how we ended up with today's decision by The Supreme Court.
In essence, the Supreme Court agreed with the Fourth Circuit, ultimately striking down the Copyright Remedy Clarification Act (CRCA) of 1990. This 30-year-old amendment to the Copyright Act of 1976 tried to strip states of their sovereign immunity where copyright was concerned, and it was at the core of Allen's lawsuit. If states can't claim sovereign immunity to get out of copyright infringement, then North Carolina had no defense. Unfortunately, the Supreme Court agreed with the Fourth Circuit, stating that Congress lacked the authority to take away State's immunity in the CRCA, passing the buck back to Congress and giving states carte blanche to infringe with impunity (or, as it were, immunity).
Torrents (Score:5, Insightful)
Time to use state owned resources to torrent all the things!
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I sense some ballot measures coming on!
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Ballot measures? The Supreme Court is not subject to ballot measures.
Ballot measures can't affect the Supreme Court, but they can affect state law and even state constitutions.
Two problems:
1. Many states don't have referendums, or only allow them if they are initiated by the legislature, not by directly by the citizens.
2. Most people don't give a crap about this issue and are unlikely to support higher taxes to pay for more lawyers and payments to photographers.
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and/or that the FEDERAL government allows you to sue them for.
The result was Federal government lacks the authority to waive a US State's sovereign immunity Not just on the copyright act, but over any matter, except where a constitutional provision allows for it.
Re:Torrents (Score:5, Insightful)
The result was Federal government lacks the authority to waive a US State's sovereign immunity Not just on the copyright act, but over any matter, except where a constitutional provision allows for it.
Might have had better luck suing under the "due process" and "takings" clauses of the 5th Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There was no due process performed by the State nor was the taking fairly (or even unfairly) compensated. States (and the Federal government) have successfully been sued under these clauses many times.
Strat
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Copyright infringement doesn't deprive anyone of property, only of a government-assigned right (copyright). There's no natural right to copyright, the natural right is to copy. Nature does it all the time.
One hand giveth...
Re: Torrents (Score:2)
Pretty sure we're in a common law system in most US jurisdictions, though that is splitting hairs. Nonetheless, that clause doesn't make a distinction whether it's intellectual property or physical property. And he was, after all, deprived of his copyright without compensation.
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No, there is one natural right, do as you will...or thiswill
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I *think* the GP was suggesting a ballot measure to get the state to start torrenting.
Re:Torrents (Score:4, Insightful)
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Re:Torrents (Score:4, Insightful)
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Re: Yeah, I wouldn't do that if I were you (Score:2)
How about a ballot measure that creates an official, state-run sharing service: free copyrighted media for all?
Does anyone want to form a new State with me? (Score:3)
It is good news for state sponsored ventilator and n95 mask production though.
I'm thinking about a new state with the Jolly Roger as the state flag....
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I heard about that place, I think they call it the State of Jefferson.
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>I think they call it the State of Jefferson.
...Davis.
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At one time Apple flew the Jollly Roger. Just saying.
Re:Does anyone want to form a new State with me? (Score:4, Insightful)
Or not. This is about Copyright, NOT Patents. MInd you, the Supremes may not consider the difference significant. But since they are different things, different rules may apply....
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The same issue regarding patents was decided the same way in the Florida Prepaid case back in 1999. I don't think anyone really expected things to come out differently with regard to copyrights.
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In this case, this guy had an arrangement with the state to allow him to document the salvage of Queen Anne's Revenge. Maybe he could have made sure the contract or whatever arrangement he had included a clause to prevent the state from using his photos and videos without paying him.
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> I'm thinking about a new state with the Jolly Roger as the state flag....
fsp.org
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That's not copyright. You're thinking of patents.
Souverign immunity? (Score:2)
Smells more like jester's license.
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Had you bothered to even read what you linked, you would see that it doesn't support your claim.
First off, the list of countries is tiny, not even close to covering "most countries" in the world. Second, of the countries listed, most do not have this level of sovereign immunity law. Pretty much just China, Philippines and United States of America have this kind of unethical, slimy government refuge.
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Have you ever actually seen a sovereign? What were you expecting, the Spanish Inquisition?
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Being a "nice guy" means not enforcing territorial claims? No political leader anywhere would have just let that happen.
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Yes. https://youtu.be/ZZ3xBP0GGO4 [youtu.be]
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OK, he was just begging for this reply. https://www.youtube.com/watch?... [youtube.com]
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Yeah, but nowadays only one busts through the door and the other two are in the hallway six feet apart.
What. Da. Fuq? (Score:2)
Yeah, I RTFA, and I flat out don't get the reasoning here.
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You generally can't sue a State, except where that State has given you permission to do so, or where you're accusing them of a Constitutional violation.
The Federal government can't waive the State's immunity on their behalf, the State would have to do it themselves. You'd need each State to pass the law, not the US Congress to do it. Or pass a Constitutional Amendment.
If Congress doesn't like that difference in effect, they can always just withdraw the Copyright Act and make it the same for everybody.
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You generally can't sue a State, except where that State has given you permission to do so, or where you're accusing them of a Constitutional violation.
Well, there's this...
US Constitution. Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “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.”
Doesn't that make using someones copyrighted material without permission a Constitutional violation?
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No. It makes it a violation of law, not the Constitution.
That clause enumerates one of the powers of Congress, not one of the rights of the People.
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What he's pointing out is that the constitution specifically designates the power of copyright to the federal government. This should place federal law on the matter over the states, sovereign immunity or not.
The logic of this is pretty tortured. In this case, the constitution specifically grants control of copyrights to the federal government. But the courts say that doesn't bind the state government itself. Yet we say the 14th amendment's "incorporation" binds the state governments to all of the nation
Only because somebody stretched the 14th beyond re (Score:2)
*After* listing the powers delegated to the feds, the Constitution was amended to say that the federal courts can't be used to sue a state over that stuff. I think that makes it pretty clear that just because the feds had previously been given aome power in a particular area, that doesn't undo the later Constitutional amendment that says you can't sue a state over it. For the copyright vlause to undo the 11th amendment requires that time runs backwards.
The 11th amendment and history give pretty strong supp
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That depends on if hte guy is a resident of North Carolina.
The 11th says you can't sue ANOTHER state in federal court.
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It does, and if you look at ONLY the text, divorced from any historical context and any reasoning, that matters. There is an argument to made that one should look at only the words on the page and pay no attention to what the framers meant or to logically reasoning about it. I don't buy that argument, but an intelligent person can make that argument.
The text of the Constitution also says repeatedly that the states continued to hold all powers of government other than those listed powers that they delegate
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So could say...
The government doesn't have the right to take away our guns.
But the government does have the right to take away our rights to the photo I took of my guns.
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You generally can't sue a State
Every legal entity can be sued.
Latest that came to mind is the citizens of Netherlands suing the state of Netherlands for not dong enough against global warming.
Re:What. Da. Fuq? (Score:4, Informative)
Generally speaking, when people say "You can't sue X (for reason Y)", they usually mean that the reason for suing does not actually stand upon its own merits against the party being sued.
If, in fact, it is the lack of the merits of someone's case that will impose limits on the likelihood of success in a lawsuit then for all practical purposes, the fact that they probably aren't going to actually try and sue amounts to the same thing as if they were actually somehow prevented from doing so in the first place.
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But is not dong enough better or worse than too much dong?
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Clarification (Score:5, Interesting)
They found that individual states have sovereign immunity that the federal government cannot take away. However, there is nothing stopping individual states from relinquishing their sovereign immunity as far as copyright goes.
In other words, if you don't like the outcome, you need to talk to your state legislature to fix it.
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I wonder if a whole bunch of states will be thinking of buying just a few "on-premise" traditional copies of Office soon, particularly if budgets are tight.
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I wonder if a whole bunch of states will be thinking of buying just a few "on-premise" traditional copies of Office soon, particularly if budgets are tight.
Or they'll be thinking a few pop/rap tunes might make catchy musical backdrops for PSAs?
Sony, Warner, Universal, Island, BMG, ABC ... time to bend over and pick up the soap.
Re:Clarification (Score:4, Insightful)
They found that individual states have sovereign immunity that the federal government cannot take away. However, there is nothing stopping individual states from relinquishing their sovereign immunity as far as copyright goes.
In other words, if you don't like the outcome, you need to talk to your state legislature to fix it.
But wait a minute. I get that sovereign immunity means they can't be prosecuted, but when a sovereign government seizes an individual's property, whether it's imminent domain or not, the individual is entitled to just compensation. Using copyright material without permission arguably is seizure without just compensation -- unless copyright material is not considered property? Or did the photographer in fact get paid something the government considers "just compensation?"
IANAL, but even so, my head asplode.
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But wait a minute. I get that sovereign immunity means they can't be prosecuted, but when a sovereign government seizes an individual's property,
I'm guessing you don't quite get it, both because that isn't what it means and what it does mean answers your question.
Sovereign immunity means the state is the ultimate authority to declare the law of the land.
Certain rights of the state have been relinquished to the federal government, but anything not on that list, the buck stops with the state.
That means the state can make the laws it wants to make.
The state defaults to the right to take property at will. But the state chose to make a law to say they w
Re:Clarification (Score:4, Insightful)
The state defaults to the right to take property at will. But the state chose to make a law to say they will compensate someone when they do so.
Technically The People chose to make a law, by way of the US Constitution and many state ones, to prevent seizure of property without compensation.
And people should not think of it as a technicality. Get out of ths mindset your rights are a gift from the powerful. Rather, they are inherent in you by fact of being human.
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> Rather, they are inherent in you by fact of being human.
No, they're inherent to you being American. Being a non-American, those rights aren't... rights.
Also they're a gift; if they weren't then things like DHS TRIP wouldn't exist.
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The Declaration of Independence differs:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
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But the Declaration of Independence was written by people, and if the people chose to do so, they can change it.
There's no such thing as an unalienable right in an absolute sense. You have the rights granted to you by the society you live in, and only for as long as the society grants them. That society may consider them unalienable, but that's just a conceit that helps buttress support for those rights.
Just because we say and act as if things are one way, doesn't me
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OK, so you don't hold those truths to be self-evident.
You're operating from a different set of assumptions than Thomas Jefferson, whose axiom was that certain rights come from God rather than the state.
"Unalienable" doesn't mean that it's impossible for the government to trample them, but that no one has the power to make it morally right for them to do so.
Of course, the right to keep people from copying your work wouldn't seem likely to be among those rights.
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Get out of ths mindset your rights are a gift from the powerful. Rather, they are inherent in you by fact of being human.
I agree, and I wish others would too. The reason that we in America have these freedoms, is because once upon a time, people actually cared about people. But I think the population back then was less than a billion people on the planet. Now there's almost 8 billion. Judging by the way people treat each other these days, I'd be interested to know what sort of constitution would be developed by today's people.
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one that has rules about frivolous lawsuits.
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Just because believing that makes for a nicer society to live in, doesn't make it true.
Our "inherent rights" are a set of conventions we all agree we like and will fight to protect, nothing more. If tomorrow we change our minds, then we'll have a new set of inherent rights. If corona causes the collapse of civilization, then there won't
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It's eminent domain, not imminent. A state's rights to property within its borders are not impending or about to happen (imminent), they are superior to others and of supreme importance (eminent).
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Thanks for all of this.
If I may paraphrase what you said, someone can take a government to court if it (a) violates its constitution, or (b) violates one of its own laws. Otherwise, you're out of luck.
I am reminded of a situation I heard of many years ago, of a death-row inmate who was exonerated after being held for almost two decades, when gross mishandling of his case became known. He proceeded to sue the state. But the state could only be sued if it allowed itself to be sued. And (surprise) it decided t
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when a sovereign government seizes an individual's property, whether it's imminent domain or not, the individual is entitled to just compensation.
Eminent domain does not necessarily imply just compensation, or even any compensation at all.
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Yes, it's eminent domain. My bad. Thanks for the improvements.
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The essence of sovereign immunity is a doctrine that the government is the source of the laws, not the subject of them. It's like living in an apartment building with the landlord and you discover that even though the tenant's agreement forbids pets the landlord has pets. When you try to complain about it, he'll say that the tenant's agreement binds them but not him. He's only subject to the "no pets" rule if he chooses to be, no matter how much you might have believed the clause implied a pet-free house. T
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In general governments have immunity. You can only sue them if they agree by legislation to provide such a path. It's good to be the king.
This isn't really about copyrights.
IANAL - The ruling sounded like it could be narrow (Score:2)
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IANAL, but Copyright is a federal matter, being enumerated as one of the powers of Congress. States may not write their own copyright laws.
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Catch 22, FTW!
Re:IANAL - The ruling sounded like it could be nar (Score:5, Informative)
This same basic issue was litigated about 20 years ago with regard to patents, so this decision as to copyrights is really no surprise.
In the US, states are held to have sovereign immunity, i.e. a state cannot be sued in the courts of that state. There are exceptions where the state has waived its immunity, but they're limited.
It's been long held that states still have sovereign immunity in federal courts as well.
In 1793, shortly after the Constitution came into effect, the Supreme Court held that citizens of one state could sue a different state in federal court. This shocked everyone, as it had not been anticipated. As a result the 11th Amendment was ratified almost immediately, to reverse that.
So if you want to sue a state for copyright infringement you'd have to get permission from the state, whether in state or federal court.
And copyright infringement suits have to be brought in federal court because Congress has established exclusive federal jurisdiction per 28 USC 1338. So state courts are out.
There are a couple of exceptions, though.
First, the immunity only applies to the state or an arm of the state; not to a political subdivision of a state. You can still sue counties, municipalities, etc.
Second, there are exceptions where states waive their immunity. They're basically pressured into it because no one will do business with them -- particularly lending money to the states -- if they don't waive.
Third, there are limits where the state is alleged to be acting unconstitutionally.
And fourth Congress can abrogate state sovereign immunity under section 5 of the 14th Amendment. But this is rarely ever done, and has limits. Ordinary copyright and patent law is enacted under Article I and doesn't inherently fall under the 14th Amendment power even if it claims to abrogate sovereign immunity.
Now, if a state made a real habit of this, Congress could probably act under the 14th Amendment. But if it's fairly unusual, that probably won't happen. So don't go expecting states to raise the old pirate flag. In fact, state legislatures are usually easily manipulated by the usual players in the copyright industry and pass laws even more restrictive than the federal government does.
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I dare a state to use a disney character (Score:5, Interesting)
Use a disney character and we'll see if that really holds up. Guarantee they'll get that thrown out - or new laws written.
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Re:I dare a state to use a disney character (Score:4, Insightful)
Congress would have to write new laws, and given how much agreement there is in Congress lately, I wouldn't hold my breath.
I'm sure if there's one thing that any Congress of any colour could agree on, it would be passing yet another Mickey Mouse law.
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Supreme Court decisions may not get "thrown out" but there is nothing stopping the Supreme Court from over ruling a previous ruling. If it was impossible for the Supreme Court to invalidate a previous ruling then there wouldn't be any reason for people to worry/hope that Roe vs Wade would be overturned (I'm sure there are other examples this was just the first that came to mind).
Micky Mouse says... (Score:2)
There are two sets of rules (Score:2)
"We can cheat, but you cannot"...
More corruption, baby...
Technical inaccuracy in OP re: writ of certiorari (Score:5, Informative)
Caution: this post has nothing to do with the legal case of interest; it discusses only some obscure legal terminology.
"The opinion came down as part of a writ of certiorari"
That is not quite correct, although it's easy to see how the title page of the Supreme Court opinion (https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf) could be misleading. That page contains, "CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT." That means that the Supreme Court agreed to review a case decided by the Court of Appeals for the Fourth CIrcuit. The document containing that annotation is the resulting opinion of the Supreme Court. The opinion is not really "part of" the writ. The writ was previously issued by the Supreme Court when it decided to take the case: as a result of its deciding to take the case, the Supreme Court sent a message, the writ, to the Fourth Circuit court saying, in paraphrase, Hey, we're going to review this case you decided so send us all the documents and records you have on it. That happened many months ago. Yesterday the Supreme Court "handed down" the result of its review in the form of an opinion written by Justice Kagan for the Court.
When the loser of an appeal in a U.S. Circuit Court of Appeals, or the highest court of a state, wants to appeal to the U.S. Supreme Court, the loser applies to the U.S. Supreme Court for a Writ of Certiorari, informally called an application for "cert," to be issued. If the Supreme Court takes the case, it "issues cert," and if it doesn't, it "denies cert." The Supreme Court issues cert for around one percent of the applications it gets.
Try that with Microsoft instead (Score:5, Insightful)
Instead of stealing from some random videographer, maybe they should just quit paying for licenses for MS products. I wonder how long it would take the courts to come to a different conclusion on that one. Or if Wyoming started making their own copies of Hollywood movies.
It seems that we don't recognize the sovereign immunity of foreign nations to ignore copyright. At least, we don't just take it lying down, even if you can't win anything from China in a US court.
Somehow I just don't see this case taking the same course if it wasn't just some dude who got ripped off, and instead it was Disney or Universal Studios.
California should seize on this to start manufacturing it's own drugs, ignoring the US patent laws. Sovereign immunity, FTW! Cali has been wanting to circumvent the drug pricing regime for decades, this seems like a great opportunity. Which brings up something else.... the same supreme court didn't recognize any sovereign immunity of the states to regulate marijuana, even going so far as to rule that someone growing pot for their own use was interstate commerce - because they would have had to buy it from interstate commerce if they didn't grow it themselves.
IOW, they'll rule any way they please on any topic, language of the law be damned. And as such, I'll bet that a different set of facts would have made a completely different ruling on the exact same law. Substitute Sony for "randome dude" and they'd jump through those same logical hoops to rule the exact opposite.
Re:Try that with Microsoft instead (Score:5, Informative)
>It seems that we don't recognize the sovereign immunity of foreign nations to ignore copyright.
Since when? China rarely violates copyrights anyway - Chinese companies do, and they don't have sovereign immunity. American courts just don't have jurisdiction to do anything about it, except as allowed by Chinese law.
We lean on other nations heavily to adopt "compatible" copyright laws specifically because our laws don't apply to them.
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>It seems that we don't recognize the sovereign immunity of foreign nations to ignore copyright.
Since when? China rarely violates copyrights anyway - Chinese companies do, and they don't have sovereign immunity. American courts just don't have jurisdiction to do anything about it, except as allowed by Chinese law.
We lean on other nations heavily to adopt "compatible" copyright laws specifically because our laws don't apply to them.
I'm no expert on China so please correct me if I'm wrong, but my understanding is that the Chinese government usually has deep roots into a lot of Chinese companies and especially any technology companies. Doesn't this blur the line regarding sovereign immunity?
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What was the last non-subscription based MS product? Office 2013? You're paying for access in Office 365, not a physical disk, so if the States stop paying MS just turns off the spigot. You're now out of the realm of copyright and into the realm of services, where States do not have sovereign immunity.
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The last non-subscription based MS product (in the Office line-up anyway) was/is Office 2019. Just because Office 365 is a subscription based Office doesn't mean you can't get a permanent non-subscription Office (in the form of Office 2019). You won't be paying for a physical disk (in most cases) but Office 2019 is still non-subscription (aside from some volume license versions).
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The vote? (Score:3)
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9-0
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Microsoft/Adobe (Score:2)
Does this mean States no longer have to pay for Microsoft licenses? If so, hundreds of millions of dollars will be saved.
State libraries? (Score:2)
So it sounds like a public library could create a free online site full of ebooks and technical journals without being forced to pay. The intention is not to damage the author, and just compensation of giving access to all the other content would be provided. Is that for real?
Bad faith? (Score:2)
License key generator for sale to state gov (Score:2)
Can I write a key generator for various software licenses, and the legally sell it to the individual state governments for research purposes? If they choose to use it to pirate software (and save taxpayers money, my key generator is way cheaper), that would not be on me, and they have immunity, so nobody is liable to anything, did I get that right?
Really? (Score:2)
So they can 3d-print valves and complete respirators without being sued? Sweet!
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The state might have to print the books itself, which could be challenging. Sovereign immunity probably doesn't extend to suppliers. Though a printer might be able to lease the state a printing facility to use as they see fit. If they were willing to risk walking that line.
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Why convert - just strip out the DRM and distribute. As soon as you make a physical copy you have production issues.