Thursday 10 February 2011

Nana-na-boo-boo, You Can’t Sue Me

imageWilcox v. Career Step, the case is a few months old now, but it hasn’t been mentioned on this blog yet and is worth a look.

The main heart of the Wilcox case is a dispute over ownership of copyright between the author of a medical coding course, Ms. Wilcox, and an online course distributor, Career Step, that offered the course and helped pay for its development and may have employed Ms. Wilcox.  However, these work-for-hire and ownership questions are not the interesting item from the recent decision.

In addition to suing Career Step, Ms. Wilcox also sued a number of individuals and colleges who received the course from the Career Step.  Some of these colleges that were sued are state-run, public institutions.  And one of these state-run, public institutions, West Virginia Community and Technical College, challenged the suit on grounds of sovereign immunity under the 11th Amendment of the US Constitution.  That motion to dismiss was granted.

The 11th Amendment prohibits law suits against a state by citizens of another state unless the state has consented to be sued or a federal law permits the suit.  West Virginia Community and Technical College is considered to be an arm of the state of West Virginia because it is controlled by and receives most of its funding from the state.  The court held that West Virginia did not consent to be sued and that there was no federal law to change the standard 11th Amendment rule.  Thus, the court granted West Virginia Community and Technical College’s motion to dismiss the copyright claims against it.

This case is unusual for a few reasons.  First, this case is going on in the District Court for the District of Utah.  This is not one of the common places for a copyright infringement suit, such as the Eastern District of New York or the Central District of California.

Second, a sovereign immunity claim in a copyright infringement suit is, I believe, a very novel defense.  (Readers can please correct me if they know of other similar cases.)  And, the success of the defense raises questions for the future of interactions between copyright holders and public education.

The United States has a large number of public universities, colleges and technical training schools, as well as an extensive public K-12 system.  If state-run institutions have immunity from copyright infringement suits, do they have a free license to ignore copyright law and infringe content as much as they would like? 

What about secondary liability concerns for things like file-sharing?  A growing number of universities, both public and private, have instituted programs and partnerships with big content to deter file-sharing on their campuses.  If state-run universities can claim sovereign immunity protection, will they have no need for these programs?  Will state universities become sanctuaries for file-sharing students?

The White House has announced recently that IP Czar Victoria Espinel is suggesting new copyright laws.  Will these include a copyright infringement exception to the 11th Amendment?

Decision dismissing claim against West Virginia Community and Technical College

First decision in case addressing a number of joinder and dismissal claims

1 comment:

Anonymous said...

This is not the first judicial decision to uphold a claim of state sovereign immunity from claims of copyright infringement. Twice in 2001, the U.S. Court of Appeals for the Fifth Circuit upheld such claims, in Chavez v. Arte Publico Press and Rodriguez v. State Commission on the Arts. And the Supreme Court had earlier upheld claims of sovereign immunity in patent and trademark cases.

Legislation was introduced that was intended to address the issue, but given how the courts have ruled, it might require a constitutional amendment to make it possible for states to be subject to liability for copyright infringement.