Court: Photographer has no recourse against university copyright infringement(houstonchronicle.com)
houstonchronicle.com
Court: Photographer has no recourse against university copyright infringement
https://www.houstonchronicle.com/business/article/Texas-court-says-photographer-has-no-recourse-13973674.php
12 comments
I guess that any out of state company would be able to sue Texas in federal court, where Texas' weird laws do not apply, and they cannot invoke sovereign immunity. But if the company is incorporated in Texas and only does business in the state, I guess the answer is yes?
Not a lawyer or anything, but this is my reading. Since no interstate commerce is happening here, the photographer cannot sue in federal court.
Edit: I think what I wrote above is wrong, having read a link in one of the other comments. All the same, my guess is that states are not going to be skipping payment on Windows licenses and taking on Microsoft in the courts. But they may be able to continue picking on little guys who have no power, as it has ever been.
Not a lawyer or anything, but this is my reading. Since no interstate commerce is happening here, the photographer cannot sue in federal court.
Edit: I think what I wrote above is wrong, having read a link in one of the other comments. All the same, my guess is that states are not going to be skipping payment on Windows licenses and taking on Microsoft in the courts. But they may be able to continue picking on little guys who have no power, as it has ever been.
> I guess that any out of state company would be able to sue Texas in federal court, where Texas' weird laws do not apply, and they cannot invoke sovereign immunity.
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” —US Constitution, Amendment XI
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” —US Constitution, Amendment XI
The supreme court has, however, held that federal courts can enjoin states from violating federal law, and copyright infringement is a federal offense under Title 17 of the US Legal Code.
It's all much more mundane and technical than this.
The reason that this suit originated in Texas state court is because their legal argument was based on Takings jurisprudence. It's complicated, but IIRC SCOTUS has effectively required that Takings claims against states originate in state court. They do this by way of the so-called ripeness doctrine. A federal court will invariably reject a Takings claim unless you can show that you pursued and failed to achieve a remedy through state administrative and legal processes, and as a practical matter this means pursuing a claim up to the state's supreme court.
Ripeness is not directly based on statute or the constitution. If we're being cynical, it's based on SCOTUS disliking Takings cases, particularly so-called regulatory takings (which arguably describes this case), because they involve difficult, highly contextual line drawing that don't lend themselves to clear-cut legal doctrines. So they basically punt. If we're being kind, they do this because forcing claimants to exhaust all state-based remedies provides a ton of factual evidence and legal arguments that benefits adjudicating such cases at the federal level.
If the claimant here made a simple copyright infringement claim they would have been able to go directly to federal court, and in fact it's rare not to do this. Actually, I think federal courts have exclusive jurisdiction over copyright infringement claims; the scope of 1976 Copyright Act leaves very little room, if any, for copyrights under state law. Except for pre-1976 productions anything copyright-related is basically controlled by federal copyright and therefore you're required to go to federal court.
Again, they had a novel legal argument, perhaps in an attempt to subvert federal jurisdiction, and more specifically to get around whatever Fair Use defenses the university could have made. That's just conjecture, though. I haven't read the case.
EDIT: You're not required to go to federal court for copyright claims simply because the claim is a federal issue. It's because federal statute explicitly gives federal courts exclusive jurisdiction over federal copyright claims.
The reason that this suit originated in Texas state court is because their legal argument was based on Takings jurisprudence. It's complicated, but IIRC SCOTUS has effectively required that Takings claims against states originate in state court. They do this by way of the so-called ripeness doctrine. A federal court will invariably reject a Takings claim unless you can show that you pursued and failed to achieve a remedy through state administrative and legal processes, and as a practical matter this means pursuing a claim up to the state's supreme court.
Ripeness is not directly based on statute or the constitution. If we're being cynical, it's based on SCOTUS disliking Takings cases, particularly so-called regulatory takings (which arguably describes this case), because they involve difficult, highly contextual line drawing that don't lend themselves to clear-cut legal doctrines. So they basically punt. If we're being kind, they do this because forcing claimants to exhaust all state-based remedies provides a ton of factual evidence and legal arguments that benefits adjudicating such cases at the federal level.
If the claimant here made a simple copyright infringement claim they would have been able to go directly to federal court, and in fact it's rare not to do this. Actually, I think federal courts have exclusive jurisdiction over copyright infringement claims; the scope of 1976 Copyright Act leaves very little room, if any, for copyrights under state law. Except for pre-1976 productions anything copyright-related is basically controlled by federal copyright and therefore you're required to go to federal court.
Again, they had a novel legal argument, perhaps in an attempt to subvert federal jurisdiction, and more specifically to get around whatever Fair Use defenses the university could have made. That's just conjecture, though. I haven't read the case.
EDIT: You're not required to go to federal court for copyright claims simply because the claim is a federal issue. It's because federal statute explicitly gives federal courts exclusive jurisdiction over federal copyright claims.
After reading more recent caselaw I think, in practical terms, the reason they attempted a Takings claim is because they wanted monetary damages, whereas because of the peculiar contours of sovereign immunity jurisprudence the remedy for an infringement claim would have at best been an injunction. And apparently more recent sovereign immunity caselaw has cast doubt in some circles on the ability to even get an injunction. I'd personally be surprised it that notion was ratified by SCOTUS, but clearly I haven't been keeping up so my opinion isn't worth much.
EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
I would like to know, if he brings it to federal court can he get out of the legal fees they are putting on him?
I took a language class in Mexico, and the textbooks were photocopies, which I was told could legally be used.
> Olive tried the approach after the University of Houston rejected his claim that the public university should pay for a photo it used without permission in web and print publications, contending the university has sovereign immunity, a well-established legal principle that protects a state from getting sued.
Terrifying. So the University of Houston claims they can just steal whatever they want?
Terrifying. So the University of Houston claims they can just steal whatever they want?
It's sovereign immunity. Any state agency can do whatever it wants and claim immunity unless the Feds get involved. The Feds can do whatever they want full stop.
The only constraint is that the state can allow itself to be sued, and therefore you have some recourse that way.
The only constraint is that the state can allow itself to be sued, and therefore you have some recourse that way.
And whatever constraints the courts interpret the constitutions as imposing on the state.
Kinda of.
The courts are generated, and therefore subject to, the executive. It's easy to see how an executive could stack a court (a la Roosevelt). Or simply denying the courts the ability to enforce their rulings and doing whatever (Jackson).
The courts are generated, and therefore subject to, the executive. It's easy to see how an executive could stack a court (a la Roosevelt). Or simply denying the courts the ability to enforce their rulings and doing whatever (Jackson).
Its shocking and depressing that so few Americans are aware of this.
And if you challenge them on it, Texas courts will find you liable for the University's legal costs, too!
Then you challenge the claim in a federal court because you've exhausted recourse in the takings claim. If that's where Texas wants to go, so be it.
So wait, universities can patent things, but then have sovereign immunity from infringing copyright?
I know the other parts of government are prohibited from being able to get copyright or patents, so that means sovereign immunity makes sense in a heavy-handed way, but allowing both ownership and immunity seems... like having your cake and eating it too.
Who's the judge I wonder...
I know the other parts of government are prohibited from being able to get copyright or patents, so that means sovereign immunity makes sense in a heavy-handed way, but allowing both ownership and immunity seems... like having your cake and eating it too.
Who's the judge I wonder...
The problem isn't the judge; it's that the defendant didn't claim copyright infringement, but a "taking" of property. I'd rather like to know who is the lawyer.
If you read the link posted elsewhere in the thread by Mathnerd314, it is apparent that the question of whether the states can be sued for copyright infringement is a live one, on which the Supreme Court has just granted certiorari.
Thanks; I was led astray by another case (Cambridge University Press v. Patton) in which a State University was found guilty, but it seems they simply failed to raise the immunity argument and therefore the court didn't apply it.
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A similar case is pending in the Supreme Court:
https://blog.ericgoldman.org/archives/2019/06/statute-of-que...
They directly sued for copyright infringement rather than trying to use eminent domain.
They directly sued for copyright infringement rather than trying to use eminent domain.
It's very bizarre to see this seemingly very pro-public-domain/anti-copyright/anti-IP decision given the reputation that Texas has for patent trolls.
The US (federal) District Court for the Eastern District of Texas has that reputation, due to local rules which attracted patent cases (IIRC, recent case law has restricted the kind of forum shopping involved in that), but that has little to do with the laws or judicial system of the State of Texas.
It's not pro public domain though, it's basically just saying that copyright doesn't apply to the government.
Not really, because thedefendent didn't claim copyright infringement (which the Texas courts couldn't rule on anyway, they would have had to go to federal court).
> Olive tried the [unlawful “taking”] approach after the University of Houston rejected his claim that the public university should pay for a photo it used without permission in web and print publications, contending the university has sovereign immunity, a well-established legal principle that protects a state from getting sued.
...does this mean the US government doesn't have to respect copyright? Seems unusual...
It seems like at least parts of the government argue that any government copying is inherently fair use http://www.loc.gov/flicc/gc/fairuse.html
Fun fact, the government opinion for patents for the government and its contractors is also that the federal government cannot be found to infringe on patents either. At most they say they voluntarily choose to provide reasonable compensation. This especially applies if the use of a patent is deemed to be in the interest of national security.
Fun fact, the government opinion for patents for the government and its contractors is also that the federal government cannot be found to infringe on patents either. At most they say they voluntarily choose to provide reasonable compensation. This especially applies if the use of a patent is deemed to be in the interest of national security.
The U.S. has waived sovereign immunity by statute for various classes of suit.
Apparently so, according to the university's defense they have sovereign immunity so its no biggie.
This was in state court. Federal laws may be different.
Constitutionally, they aren't. But congress passed laws waiving S.I. in some cases.
Of course, laws can be repealed.
Of course, laws can be repealed.
Whose role is it to enforce copyright?
The US government has sovereign immunity, just like Texas claims here. The difference is that a Federal court can overrule a state's SI.
Nobody can overrule the federal government's SI, meaning the federal government cannot be sued for any reason unless it agrees to be sued and forfeits SI in that case.
How do people not know this?
Nobody can overrule the federal government's SI, meaning the federal government cannot be sued for any reason unless it agrees to be sued and forfeits SI in that case.
How do people not know this?
...because not everyone on HN is American?
I was under the impression that sovereign immunity only applied to suing of state actors (ie employees / officials, etc) but I guess it can be applied writ-large to entire institutions as well based on the copyright infringement ruling?
Sounds like a job for the state legislature to handle - writing out an exception to immunity for infringement. Otherwise why would anyone bother attempting to do licensed work in Texas at all?
Sounds like a job for the state legislature to handle - writing out an exception to immunity for infringement. Otherwise why would anyone bother attempting to do licensed work in Texas at all?
The immunity from copyright and patent claims is critical to universty researches. Without it basic research would get mired in patent and copyright claims.
Many would be eventually ruled as fair use but that requires a judge to make a judgement as to the fair use factors. SI just requires the judge to see that it is the uni of Texas.
The uni doesnt care about the photographers licence fee. It cares about not getting by a phama company because a researcher happened to use a chemical that was under patent.
Many would be eventually ruled as fair use but that requires a judge to make a judgement as to the fair use factors. SI just requires the judge to see that it is the uni of Texas.
The uni doesnt care about the photographers licence fee. It cares about not getting by a phama company because a researcher happened to use a chemical that was under patent.
Plenty of research gets done by corporations, private universities, and research institutes with needing immunity from copyright and patent claims. If public universities want immunity from copyright and patent claims then the resulting research should not be able to be copyrighted or patented.
I'm kind of curious about whether he'd have options to pursue this under the DMCA. Are there legal grounds for the University to ignore takedown notices? I'm seeing things that say the university has immunity against being sued for infringement (not sure quite why, state vs federal jurisdiction), but that's a different thing.
So could universities embed an entire textbook in their course descriptions?
Could they post full feature films on their websites?
Could they post full feature films on their websites?
Another clever move by Texas secessionists in their strategy to make the state too unpalatable to deal with or in.
Please don't use HN for regional battle.
You've assumed malice where none was intended. Downvotes before self-redacting, nevertheless.
No malice assumed! just reacting to how the comment appears on the surface, because that's how most readers are going to perceive it. If your intent was otherwise, you need to make that explicit. Intent doesn't translate by default on the internet, unfortunately.
This makes no sense. Imagine that SpaceX took a photograph on the moon, and then a university freely used the image in its marketing materials. Would that make sense? Would it make any more sense if the university had a space program? No.
SpaceX isn’t the greatest example here. They commonly release their photos into the public domain with a Creative Commons waiving all copyright and related or neighboring rights to their work. Though the point still stands with photographers and photo releases in general.
Agreed. As you realized, though, the point is that copyrighted work should not be used without compensating the creator.
A lot of problems around copyright is a self-inflicted mess caused by (IMO) wrong abstractions, not reflecting the nature of the works and the media. For instance, photography has an issue of copyrights on buildings, which is prima facie a ridiculous concept, but it is recognized to some extent around the world, including in the US.
Completely, if I’m a photographer in Texas I would be worried about the effect of this ruling on my work. It’s hard for people to understand when they hire a photographer that even though they paid for images and prints they might not even have the right to modify and/or print more. But this sidesteps that completely.
To me, its as unethical as plagiarism.
If it's a state university then, yes, they could claim Sovereign immunity.
But states can be wrong. That's why it makes no sense.
The idea is that the sovereign can do nothing illegal because by definition it is the fount of legislation. Lawful, therefore, is whatever suits the sovereign.
In the UK this is neatly seen by the Queen being immune, and not needing any documents. After all, why would she need a document asserting that she gives herself the right to drive? She can just say so to the cop that pulls her over. Except the cop cannot pull her over if he knows she's the driver.
Even the constitution is subject to the sovereign, if you think about it, since it is meaningless without the sovereign but the sovereign is not meaningless without the constitution. It's a bootstrapping problem, after all. Why is the constitution valid just because a bunch of blokes signed it and one you sign is meaningless? Because they, the winners of the Revolution, the folks in charge of the militias, the de facto sovereigns at the time, signed it.
In the UK this is neatly seen by the Queen being immune, and not needing any documents. After all, why would she need a document asserting that she gives herself the right to drive? She can just say so to the cop that pulls her over. Except the cop cannot pull her over if he knows she's the driver.
Even the constitution is subject to the sovereign, if you think about it, since it is meaningless without the sovereign but the sovereign is not meaningless without the constitution. It's a bootstrapping problem, after all. Why is the constitution valid just because a bunch of blokes signed it and one you sign is meaningless? Because they, the winners of the Revolution, the folks in charge of the militias, the de facto sovereigns at the time, signed it.
Reading the article solves one mystery, but brings up another.
The photographer for some reason did not pursue this as a copyright infringement claim. Instead he argued that it was an eminent domain case where the state had seized his private property and was, according to Texas state law, required to compensate him for the seized property.
It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs for filing a frivolous case.
Instead they oddly ruled instead that the school has sovereign immunity from lawsuits, and ordered him to pay their costs.
It is strange if the state can not be held accountable in court for eminent domain seizures despite the state law to the contrary.
It is strange that they ruled that way rather than ruling that copyright infringement is not a domain seizure.
It is strange that the plaintiff filed this case this way.
The photographer for some reason did not pursue this as a copyright infringement claim. Instead he argued that it was an eminent domain case where the state had seized his private property and was, according to Texas state law, required to compensate him for the seized property.
It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs for filing a frivolous case.
Instead they oddly ruled instead that the school has sovereign immunity from lawsuits, and ordered him to pay their costs.
It is strange if the state can not be held accountable in court for eminent domain seizures despite the state law to the contrary.
It is strange that they ruled that way rather than ruling that copyright infringement is not a domain seizure.
It is strange that the plaintiff filed this case this way.
>The photographer for some reason did not pursue this as a copyright infringement claim.
The reason is that state institutions have sovereign immunity from copyright infringement lawsuits.
>Instead he argued that it was an eminent domain case
His only recourse was to argue that the infringement was an unconstitutional exercise of government power and sue on constitutional grounds rather than statutory grounds.
>It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs
According to the article, that's what the court did.
>Instead they oddly ruled instead that the school has sovereign immunity
The article doesn't say that.
>It is strange if the state can not be held accountable in court for eminent domain seizures
It can be, but copyright infringement is a tort, not a property transfer, so not covered under the takings clause.
>It is strange that the plaintiff filed this case this way.
It was his only option if he wanted to present his case in court.
The reason is that state institutions have sovereign immunity from copyright infringement lawsuits.
>Instead he argued that it was an eminent domain case
His only recourse was to argue that the infringement was an unconstitutional exercise of government power and sue on constitutional grounds rather than statutory grounds.
>It would be sufficient at this point for the state to rule that copyright infringement is not the same as eminent domain seizures, rule against him, and order him to pay the defendant's costs
According to the article, that's what the court did.
>Instead they oddly ruled instead that the school has sovereign immunity
The article doesn't say that.
>It is strange if the state can not be held accountable in court for eminent domain seizures
It can be, but copyright infringement is a tort, not a property transfer, so not covered under the takings clause.
>It is strange that the plaintiff filed this case this way.
It was his only option if he wanted to present his case in court.
> The reason is that state institutions have sovereign immunity from copyright infringement lawsuits.
Federal courts disagree; in Cambridge University Press v. Patton, they did a work-by-work fair use test, and Georgia State University was found infringing on four counts.
Federal courts disagree; in Cambridge University Press v. Patton, they did a work-by-work fair use test, and Georgia State University was found infringing on four counts.
Correction: it seems they simply failed to raise that argument, so the court didn't take sovereign immunity into account.
Sovereign immunity is the legal doctrine that the government can't be sued for anything unless it specifically allows you to do so. In this case, Texas state law does not have a provision that allows it to be sued for copyright infringement. So, the photographer could not file a claim for copyright infringement, either in state or federal court. That's why he tried the novel approach of suing them under the "takings" clause of the US Constitution. The Bill of Rights is a specific case where the government has allowed itself to be sued for violating those provisions. Under Supreme Court precedent, most provisions of the Bill of Rights apply to the states as well as to the federal government.
> Sovereign immunity is the legal doctrine that the government can't be sued for anything unless it specifically allows you to do so.
I recognize why this exists, but I can't help but wonder why people working in government are so prepared/eager to defend the actions of the government or avoid admitting wrongdoing at any cost. Just admit, 'hey, yeah, we should have paid. We aren't required to because, like, immunity, but it would be the right thing to do. Here's some money.' and move on.
Or when cops and DAs use some sketchy means of doing something good, like stingrays. Is there no sense of, hey, maybe we shouldn't have this power. We should self-regulate or get legislation made. It's not even against self-preservation as those tools made them better at their jobs, in theory, reducing the need for more people.
I just feel like the people in our government, at all, levels, could be more honest.
Politics makes me sad. :(
I recognize why this exists, but I can't help but wonder why people working in government are so prepared/eager to defend the actions of the government or avoid admitting wrongdoing at any cost. Just admit, 'hey, yeah, we should have paid. We aren't required to because, like, immunity, but it would be the right thing to do. Here's some money.' and move on.
Or when cops and DAs use some sketchy means of doing something good, like stingrays. Is there no sense of, hey, maybe we shouldn't have this power. We should self-regulate or get legislation made. It's not even against self-preservation as those tools made them better at their jobs, in theory, reducing the need for more people.
I just feel like the people in our government, at all, levels, could be more honest.
Politics makes me sad. :(
Sovereign immunity doesn't preclude suing a public university; it doesn't preclude it as a general matter, and definitely doesn't preclude it wrt copyright. One way to look at it is that a university is akin to a municipality--it exercises state powers but it's not the state, per se.
There are many well known copyright claims against public universities. The one that immediately came to mind (I forgot the case citation) would have supported his infringement claim, though it involved xerox'ing of academic textbooks so not quite on point.
See my post elsethread for the most likely reason they went to state court.
There are many well known copyright claims against public universities. The one that immediately came to mind (I forgot the case citation) would have supported his infringement claim, though it involved xerox'ing of academic textbooks so not quite on point.
See my post elsethread for the most likely reason they went to state court.
Very interesting. So how do you distinguish between the state and a branch or arm or subsidiary of a state? A department (say, the Department of Motor Vehicles) is clearly the state. What if a public university is operated just like a department? If it's taxpayer-funded, professors are public employees, and management is appointed by the governor?
I could see how it would not be the state if it were separately incorporated, funded, and governed, just like a municipality.
So what's the rule that distinguishes entities that have sovereign immunity from those that don't?
I could see how it would not be the state if it were separately incorporated, funded, and governed, just like a municipality.
So what's the rule that distinguishes entities that have sovereign immunity from those that don't?
The necessity of the taking for the purpose of operation. Same rule that limits federal government agencies from taking anything they want. A constitutional grant.
Use of this specific photograph is not required by any means that could be seriously construed.
Use of this specific photograph is not required by any means that could be seriously construed.
My memory of this area of the law is not very strong but a good jumping off point is probably Garcia v. San Antonio Metropolitan Transit Authority: https://en.wikipedia.org/wiki/Garcia_v._San_Antonio_Metropol....
It answers the question of when state sovereignty protects state activities from federal regulation. Questions of when a person can directly sue a state or state entity under federal law and what types of remedies might be available are different, but I'm pretty sure you can find your way to cases that explain those in Garcia's citations (the actual case, if not from the Wikipedia article). I can't remember any good ones off-hand, and sadly I can't articulate a way to frame the issues that would help finding them.
TL;DR: if an individual employee can sue a state transit agency to enforce federal minimum wage, then I can't imagine of any reason sovereign immunity would categorically prohibit enforcing copyright against a public university, especially considering that regulation of copyright is one of the few enumerated powers of the Federal government.
EDIT: It gets complicated. Apparently the scope of https://en.wikipedia.org/wiki/Seminole_Tribe_of_Florida_v._F... evolved into something much more strict than I thought. I remembered it as simply prohibiting the federal government from being able to force the state to do something in particular, like negotiate with the tribe or, in related cases, pay damages, as opposed to enjoining something. See https://www.copyright.gov/docs/regstat72700.html. OTOH, see https://en.wikipedia.org/wiki/Central_Virginia_Community_Col.... I'll stop giving my opinion....
EDIT EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
It answers the question of when state sovereignty protects state activities from federal regulation. Questions of when a person can directly sue a state or state entity under federal law and what types of remedies might be available are different, but I'm pretty sure you can find your way to cases that explain those in Garcia's citations (the actual case, if not from the Wikipedia article). I can't remember any good ones off-hand, and sadly I can't articulate a way to frame the issues that would help finding them.
TL;DR: if an individual employee can sue a state transit agency to enforce federal minimum wage, then I can't imagine of any reason sovereign immunity would categorically prohibit enforcing copyright against a public university, especially considering that regulation of copyright is one of the few enumerated powers of the Federal government.
EDIT: It gets complicated. Apparently the scope of https://en.wikipedia.org/wiki/Seminole_Tribe_of_Florida_v._F... evolved into something much more strict than I thought. I remembered it as simply prohibiting the federal government from being able to force the state to do something in particular, like negotiate with the tribe or, in related cases, pay damages, as opposed to enjoining something. See https://www.copyright.gov/docs/regstat72700.html. OTOH, see https://en.wikipedia.org/wiki/Central_Virginia_Community_Col.... I'll stop giving my opinion....
EDIT EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign immunity vs copyright: https://www.scotusblog.com/case-files/cases/allen-v-cooper/
I agree. I feel that the case would have ended up much differently if he had sued in his federal District Court.
It seems like under this precedent the University of Houston could just create their own copies of whatever textbooks they want for their students, potentially even selling those copies.