Re: Florida Pre-paid v. College Savings Bank

From: <lsboyc[_at_]lsu.edu>
Date: Tue, 6 Jul 1999 09:32:19 -0500

On 7/4/99, Alan Kabat <alankabat[_at_]aol.com> wrote:
>
> "Here's an interesting point that was just made about the impact of
> Florida Pre-Paid v. College Savings Bank to the copyright world ---
>
> "This ruling is likely to have serious repercussions in such areas as
> copyright law, where state universities, now chafing under expanded
> copyright protection, might decide to copy and distribute to students
> whatever literature they wish, ignoring the copyright laws but safe
> in the knowledge that they cannot be sued." (S. Sherry, "Some Targets
> Were Larger Than Others," Wash. Post., July 4, 1999, at B-4).
>
> Those who remember the cases involving Kinko's, Texaco, and related
> "copy shop" scenarios, will see the potential for state universities
> taking over the course-pack material market, at least for their own
> students."

     As someone at a State University who is very interested in wider distribution of learned materials for educational purposes, I wonder if this is really true? I get the feeling from the part of the decision quoted below that such a pattern of purposeful behavior would give Congress the right to legislate against such behavior, and that perhaps state remedies would be appropriate. I would be pleased to see an interpretation from those qualified to draw such conclusions, which I clearly am not.

   "Although patents may be considered property within the meaning of    the Due Process Clause, the legislative record still provides little    support for the proposition that Congress sought to remedy a    Fourteenth Amendment violation in enacting the Act. Under the plain    terms of the Due Process Clause and the clear import of this Court's    precedent, a State's infringement of a patent violates the    Constitution only where the State provides no remedy, or only    inadequate remedies, to injured patent owners for its infringement    of their patent. Congress, however, barely considered the    availability of state remedies for patent infringement. The primary    point made by the limited testimony on state remedies was not whether    the remedies were constitutionally inadequate, but rather that they    were less convenient than federal remedies and might undermine the    uniformity of patent law. Congress itself said nothing about the    existence or adequacy of state remedies in the statute or the Senate    Report. The need for uniformity in patent law construction, though    undoubtedly important, is a factor belonging to the Article I    patent-power calculus. Moreover, a state actor's negligent act    causing unintended injury to a person's property does not "deprive"    that person of property within the meaning of the Due Process Clause,    and the record suggests that state infringement of patents was at    worst innocent. The legislative record thus suggests that the Act    does not respond to a history of widespread and persisting    deprivation of constitutional rights of the sort Congress has faced    in enacting proper prophylactic sec. 5 legislation. Because of the    lack of legislative support for Congress? conclusion, the Act's    provisions are so out of proportion to the supposed remedy or    preventive object that they cannot be understood as responsive to, or    designed to prevent, unconstitutional behavior"

                                   BRB

Bert R. Boyce, Professor & Dean
School of Library & Information Science
Louisiana State University
267 Coates Hall
Baton Rouge, LA 70803

     (225)388-3158
FAX: (225)388-4581
LSBOYC[_at_]lsu.edu Received on Tue Jul 06 1999 - 14:33:28 GMT