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CHAVEZ:

ENFORCEMENT OF COPYRIGHT LAW AGAINST STATE UNIVERSITIES

Background

Several years ago, the Supreme Court handed down a decision that suggested that states might be entitled to 11th Amendment immunity in lawsuits brought against them in federal court asking for money damages for copyright infringement. Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996). Later, the Fifth Circuit Court of Appeals confirmed that this was true in Chavez v. Arte Publico Press, 157 F.3d 282 (CA 5 1998). The Fifth Circuit subsequently withdrew its 1998 opinion, reheard the case, and reached the same conclusion in light of other more recent Supreme Court cases addressing the constitutionality of patent and trademark laws similar to the copyright law that was at issue in Chavez. Chavez v. Arte Publico Press, --- F.3d --- (CA 5 2000).

Arte Publico Press is part of the University of Houston, a Texas state university. The University of Houston contended that its sovereign immunity under the 11th Amendment applied to Chavez' copyright and trademark claims for damages. The Fifth Circuit agreed with the University of Houston. The court said that the 11th Amendment denies Congress the power to create a cause of action in federal court against a state for damages for violations of federal copyright or trademark laws. It said that Congress could not legally act under Article I of the Constitution (the part of the Constitution that authorizes Congress to enact the copyright and patent laws) or under Subsection 5 of the 14th Amendment (the part of the 14th Amendment that gives Congress the power to enforce against the states the 14th Amendment's prohibition on taking property without compensation or denying anyone due process under the law).

So, what exactly does Chavez mean for the University of Texas System ("UT System"), its libraries, faculty members, staff members and students? Are we home free? Game over? We win?

Get a grip! What it means is this: One stick in the bundle of remedies available to copyright owners has, for the moment, been set aside. No one can sue UT System or its component institutions for money damages in federal court for infringement of copyright. Are we celebrating? Not really. While we are certainly happy that at least for now one of our worst fears is calmed, we are not running to the copy machine or logging onto every bootleg music and software site we can get to. There are far too many other reasons besides fear of lawsuits for money damages in federal court for us to respect the intellectual property of creative people. Here are a few of them:

1. We are creative people too. It is simply unethical as well as illegal to trample the rights of others. How could we do that and still expect others to respect our rights?
   
   
2. Copyright infringement is still against the law and copyright owners have many other ways to enforce their rights! Look at what they can do:

   Sue the people who run UT System or any UT System component for injunctive relief (ask a court to make individuals stop doing whatever it is we might be doing that infringes copyrights);

   Sue UT System or any UT System component in state court for breach of contract if we violate the terms of a software, database or other information license agreement that protects works covered by copyright laws;

   Sue any UT System or component employee individually for copyright infringement for money damages or injunctive relief or both in federal court, especially where the employee's allegedly infringing activity is clearly outside the scope of activity permitted by the copyright statute, including reasonable interpretations of fair use.

3. The Chavez case is not over yet. Chavez may be appealed to the Supreme Court, though given its recent decision regarding patents (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, --- U.S. --- (1999) and a similar decision regarding trademarks, it may not take a case like Chavez that seems to raise the same issue in a slightly different context.
   
   
4. Congress will try to address the problems that the Supreme Court identified in Florida Prepaid, or problems that it might identify in Chavez and pass new legislation to subject the states to suits for infringement in federal or state court.

I hope this gives you the big picture. While, at least for now, UT System and our components are not likely to be named in a copyright infringement suit in federal court asking for money damages, it does not mean that we should throw caution to the wind and ignore people's copyrights (or patents and trademarks for that matter).

We strongly advise all our UT System components and all of our employees and our students to

• continue to learn about copyright law,
• follow our Rules of Thumb and the Four Factor Fair Use Test when using others' works,
• get permission when needed, or when in doubt
• seek out opportunities to license comprehensive access to digital materials, and
• carefully manage our own copyrights

-- in short, to follow our UT System Comprehensive Copyright Policy.