Re: Florida Pre-paid v. College Savings Bank

On Wed, 23 Jun 1999, Alan Kabat <alankabat[_at_]aol.com> wrote:
>
> The relevance of this is that if a copyright owner claims that a state
> government entity, such as a state university or a state tourism bureau,
> has infringed her copyright, she may be out of luck...

I wonder if the copyright owner in your hypothetical could bring an action for state unfair competition in a different state -- her home state for example -- assuming she could get longarm jurisdiction over the defendant state entity. I realize this creates potential s301 preemption problems, but it's not clear that equivalent rights are being asserted if federal copyright provides no rights against state governments.

Alternatively, in Florida Pre-Paid, the Court held that patent infringement by states is not a violation of due process (if it were, Congress could remove state 11th Amd. immunity under its 14th Amd. enforcement power) because adequate state remedies, such as deceit and unfair competition, may exist. This may not be so, however, in copyright law since state actions like the one proposed above may be completely preempted. Under this logic, the copyright act's state immunity removal provision in s511 might well be within Congress's 14th amendment power.

Jason Vogel
<jasonvogel[_at_]ibm.net> Received on Thu Jun 24 1999 - 23:52:57 GMT