The Fifth Circuit is currently in the process of making states immune
to copyright suits. I don't have the cites handy--for shorthand, we
always call it _Chavez_ or _Arte Publico_ -- but the somewhat tortured
history (gleanable from the Fifth Circuit's website,
http://www.ca5.uscourts.gov/) is --
- Arte Publico Press, part of the University of Houston system and
thus the State of Texas by rather tortured reasoning so strongly
founded in precedent that we're stuck with it, published a
collection of plays, including a revision of Chavez's play of
which Chavez did not approve. Chavez had previously agreed to
publication, but tried to withdraw approval prior to publication.
Unfortunately, since discovery was far from complete, we have to
assume that a lot of the facts are as stated by the pleadings;
the realities of the publishing process make the Fifth Circuit's
statement of facts _extremely_ unlikely.
- Chavez sued Arte Publico. The District Court denied Arte Publico's
motion for SJ on sovereign immunity.
- Shortly after Seminole Tribes was decided, the Fifth Circuit
(Jones, J.) reversed. En banc rehearing was granted, and the
Fifth Circuit proceeded to sit on the case while the Supreme Court
considered things again this past Term.
- The Supreme Court, in the College Savings Bank decisions, determined
that states can stick out their collective tongues at patent
infringement suits.
- In August of 1999, the Fifth Circuit sent Chavez back to the panel
for reconsideration in light of College Savings Bank. Given that
College Savings Bank adopted the core of the reasoning in Chavez
in the first place, just what do you think the result is going to be?
The irony that "Arte Publico" is bad Latin for "public arts" appears
to have been lost on the litigants, and has certainly been lost on
the courts.
C.E. Petit
<cepetit[_at_]usa.net>
Received on Sun Aug 15 1999 - 16:05:57 GMT