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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

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.

LurkersWillLurk 7y ago
I agree. I feel that the case would have ended up much differently if he had sued in his federal District Court.
ccleve 7y ago
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.
- eximius 7y ago
  > 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. :(
- wahern 7y ago
  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.
  - ccleve 7y ago
    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?
    - AstralStorm 7y ago
      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.
    - wahern 7y ago
      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_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._Florida 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 https://www.copyright.gov/docs/regstat72700.html. OTOH, see https://en.wikipedia.org/wiki/Central_Virginia_Community_College_v._Katz 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/ https://www.scotusblog.com/case-files/cases/allen-v-cooper/
blacksqr 7y ago
>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.
- icebraining 7y ago
  > 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.
  - icebraining 7y ago
    Correction: it seems they simply failed to raise that argument, so the court didn't take sovereign immunity into account.

LurkersWillLurk 7y ago

I agree. I feel that the case would have ended up much differently if he had sued in his federal District Court.

ccleve 7y ago

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.

eximius 7y ago
> 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. :(
wahern 7y ago
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.
- ccleve 7y ago
  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?
  - AstralStorm 7y ago
    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.
  - wahern 7y ago
    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_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._Florida 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 https://www.copyright.gov/docs/regstat72700.html. OTOH, see https://en.wikipedia.org/wiki/Central_Virginia_Community_College_v._Katz 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/ https://www.scotusblog.com/case-files/cases/allen-v-cooper/

blacksqr 7y ago

>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.

icebraining 7y ago
> 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.
- icebraining 7y ago
  Correction: it seems they simply failed to raise that argument, so the court didn't take sovereign immunity into account.