Re: Florida Pre-paid v. College Savings Bank

From: John R. Allison <allisonj[_at_]mail.utexas.edu>
Date: Fri, 09 Jul 1999 13:53:13 -0500

On Thu, 08 Jul 1999, Paul Heald <heald[_at_]arches.uga.edu> wrote:
>
> On Wed, 07 Jul 1999, Sam Byassee <sam_byassee[_at_]shmm.com> wrote:
> >
> > On Tue, 06 Jul 1999, John R. Allison <allisonj[_at_]mail.utexas.edu> wrote:
> > >
> > > On 7/4/99, Alan Kabat <alankabat[_at_]aol.com> wrote:
> > > >
> > > > "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).
> > >
> > > Won't happen. Very few universities want the reputation of being
> > > thieves, even thieves with immunity. Moreover, if it becomes a
> > > problem
> >
> > Although it's doubtful that such activity will become official
> > university policy, by the time news about these opinions filters
> > down generally to faculty members, I expect the (inaccurate) gloss
> > on the holdings simply will be that "states (and state entities)
> > cannot be held liable for copyright infringement." As a result,
> > individual faculty members will copy, or encourage students to copy,
> > without regard to copyright law.
>
> Wouldn't this be very foolish of them to do, given that the cases
> provide NO immunity at all for professors or students? We may indeed
> see more copying, but only if College Savings is misunderstood. And
> also remember under Alden that a University President or Head of a
> Board of Regents is still subject to injunctive relief under Ex Parte
> Young if institutions they control continually violate federal law.
>
> I'll add, in response to a section of the above message I deleted,
> that the professors disparaged have a strong argument that most of their
> copying is valid under the fair use doctrine. Remember that the courts
> in both the Kinko's case and the Michigan Document Services cases made
> clear that the fair use analysis would be different if Professors were
> plaintiffs rather than for-profit copyshops.

And remember that, with respect to copy shops, the immunity only applies to (state) university-owned ones. I remain convinced that most universities do not want the reputation of being thieves, and universities can certainly tell their own copy shops what to do and what not to do. And, as I noted previously, a majority of state legislators in any given state are also not likely to want the public universities in their state to have such a reputation, and legislatures can do many things to any of their public universities who might decide to be rogues. As I said before, "Won't happen."

John Allison

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John R. Allison
The Spence Centennial Professor of Business Administration Graduate School of Business
University of Texas at Austin
Phone 512-471-9435
FAX 512-471-0587
allisonj[_at_]mail.utexas.edu Received on Fri Jul 09 1999 - 18:49:34 GMT