Re: Florida Pre-paid v. College Savings Bank

Paul Heald is correct that Ex parte Young provides a basis for enjoining a state actor's copyright infringement, and Mark Lemley is correct in stating that damages liability against the state actor in his or her individual capacity might be a more effective deterrent but is rarely used. But maybe we'll see more such suits in the wake of Florida Pre-Paid. There is some authority that suggests that a state actor can be held personally liable in a civil action for violation of federal law, even if the conduct is authorized by the state. See, e.g., Farid v. Smith, 850 F.2d 917, 920 (2d Cir. 1988), and sources cited therein. The theory is basically the same as that which underlies Ex parte Young: the supremacy clause mandates compliance with federal law, no matter what the state says to the contrary.

Of course it may seem unpalatable to hold someone personally accountable for doing what the state tells him to do, at least if there is some reason to believe that what the state is telling him to do is legal. In civil rights action, state employees in this situation are therefore protected by quality immunity (i.e., they are personally liable only if their conduct violates clearly established law). Would a similar immunity attach in copyright actions, or is it peculiar to civil rights law?

On the other hand, the state could always choose to indemnify its employees for actions undertaken at the state's bidding. This action would be voluntary on the part of the states, and therefore would not transform an action against the state actor individually into an action against the state.

In any event, actions against the state actor individually are not so unpalatable where the state actor is acting on his or her own and not in accordance with official state policy. I wouldn't be all that surprised to see more such actions in the future, although the possibility that a state actor would be judgment-proof might be a deterrent to some suits--more so perhaps with regard to patent litigation, which is usually quite costly, than with regard to copyright.

On the issue of whether state uses of i.p. are takings, in my view the Court dismissed the argument too casually. I nevertheless respectfully disagree with Paul Heald on the issue of whether takings law *could* provide a basis for rendering the states liable in the manner contemplated by the Remedy Clarification Acts, for reasons a coauthor and I discuss in a recent issue of the Fordham Law Review.

Thomas F. Cotter
Associate Professor of Law
University of Florida College of Law
Gainesville, Florida 32611-7625
(352) 392-2235 (office)
(352) 392-3005 (fax)

cotter[_at_]law.ufl.edu Received on Wed Jul 07 1999 - 13:37:27 GMT