Re: Use of copyrighted materials by state agency

Dan Burk <burkdanl[_at_]shu.edu> writes:
>
> When you purchase a CD of clipart, the seller probabaly asserts that
> you have not purchased it, but have licensed it

My understanding was that you had purchased the CD (hence have all your usual first sale and fair use rights to it), but that the license granted you additional rights beyond what you already had, for example the right to make copies of portions of the CD for use as clipart. Is this a useful distinction to make in analyzing the enforceability of the license terms on the clipart collection?

> And, having said that, that it appears under present law the states
> cannot be sued for copyright damages due to the 11th Amendment.

It would be useful to focus on the issue of licenses on clipart and ignore the separable issue of whether a state agency can be sued for copyright infringement, perhaps by recasting the hypo with the organization being a private nonprofit organization or something. Given the current hypo, note that your risk is still unclear. We don't know what will happen wrt states and 11th amendment (cf. College Savings). Even if the state agency can't be sued, perhaps the individuals who actually perform the copying can be sued. Or perhaps the issue is contract violation rather than copyright, in which case the Seminole decision doesn't apply. Etc.

JQ Johnson                      office: 115F Knight Library
Academic Education Coordinator  mailto:jqj[_at_]darkwing.uoregon.edu
1299 University of Oregon       phone: 541-346-1746 (v) -3485 (fax)
Eugene, OR  97403-1299          http://darkwing.uoregon.edu/~jqj/