[CAVO] An aside about CRCA and open source licenses

Fri Sep 11 23:45:04 UTC 2015

Thanks Nigel. I love to read interesting court decisions
<http://business.cch.com/ipld/CoyleUniversityofKentucky342014.pdf>  (Coyle
v. University of Kentucky). I even enjoy being instructed about the
relationship between sovereign immunity and copyright law. :-)

[Complicated legal discussion follows...]

This case was decided on VERY narrow and technical legal grounds. In its
complaint, the plaintiff accused a public Kentucky university and its
officials of copyright infringement of certain sports photographs. The
plaintiff asserted that his copyright claims were not barred against the
University defendants because Congress validly abrogated sovereign immunity
for copyright claims when it passed the Copyright Remedy Clarification Act
(CRCA) <http://uscode.house.gov/statutes/pl/101/553.pdf>  in 1990. The CRCA
prevented sovereign immunity for copyright claims. State and local
governments can't ignore copyright licenses.

However, the federal district court in Kentucky held that sovereign immunity
was justified in this copyright case on 11th Amendment
<https://www.law.cornell.edu/constitution/amendmentxi>  grounds because the
CRCA statute passed by Congress relied on Article I, Section 8 of the U.S.
Constitution <http://www.annenbergclassroom.org/page/article-i-section-8>
(the copyright authorization) rather than on Section 5 of the Fourteenth
Amendment <https://www.law.cornell.edu/constitution/amendmentxiv>
(Congress' enforcement power). "A statute that clearly invokes the
constitutional provision on which Congress is relying to pass it 'precludes
consideration' of alternative justifications." In other words, Congress got
it subtly wrong when it justified the CRCA. And the plaintiff was stuck with
that. :-(

This case is interesting because, if it prevails, state and local agencies
could ignore open source (and proprietary!) licenses based on the 11th
Amendment. That won't work for any of us or our licenses. I'll assume that a
higher court will reverse or that Congress will solve this problem by
reauthorizing CRCA for a different (14th Amendment) reason. Or perhaps this
decision will just flush into the realm of bad court cases. And then
governments once again cannot claim sovereign immunity to permit their own
copyright infringement. 

As for suing certain defendants in their "official" or "individual"
capacities....  Interesting case for HR lawyers, but I assume that the State
of Kentucky paid the defendants' legal fees.

[Can someone find out what happened with this case after the March 2014
decision?]

This is yet another reason not to experiment with the OSET license and
instead to rely on GPLv3 enforcement around the world. I know some people
around here who will assert the GPL even against government agencies if
necessary regardless of the 11th Amendment. :-)

/Larry

-----Original Message-----
From: Tzeng, Nigel H. [mailto:Nigel.Tzeng at jhuapl.edu] 
Sent: Friday, September 11, 2015 11:38 AM
To: Lawrence Rosen <lrosen at rosenlaw.com>; 'License submissions for OSI
review' <license-review at opensource.org>; 'CAVO' <cavo at opensource.org>
Subject: Re: [License-review] Submission of OSET Public License for Approval

Coyle v. University of Kentucky - dismissed because the doctrine of
sovereign immunity under the 11th Amendment precluded the University from
being sued for copyright infringement.

<http://www.dailyreportingsuite.com/ip/news/sovereign_immunity_barred_copyri
>
http://www.dailyreportingsuite.com/ip/news/sovereign_immunity_barred_copyri

ght_suit_against_state_university

CRCA hasn’t been upheld against any state AFAIK but then IANAL.

It is pretty clear, however, that there is case law that states, at least,
have some immunity to copyright violations based on Sovereign Immunity if
they haven’t explicitly waived them.  At best you can use Ex parte Young to
make them stop.

Pretty amazing that Revolutionary War debt is still having repercussions in
2015 because of the 11th Amendment.

On 9/11/15, 12:54 PM, "License-review on behalf of Lawrence Rosen"

<
<mailto:license-review-bounces at opensource.org%20on%20behalf%20of%20lrosen at ro
senlaw.com> license-review-bounces at opensource.org on behalf of
lrosen at rosenlaw.com>

wrote:

>Nigel and Josh,

> 

>Copyright has nothing to do with "sovereign immunity."

> 

>What you refer to is merely the inability of the U.S. federal 

>government to claim copyright in works created by its government 

>employees in the course and scope of their employment. This applies to 

>all such writings, even software and court decisions. 17 U.S.C. 105: 

>"Copyright protection under this title is not available for any work of 

>the United States Government, but the United States Government is not 

>precluded from receiving and holding copyrights transferred to it by 

>assignment, bequest, or otherwise."

> 

>The important concern that some of us are raising is the wording in the 

>OSET license that allows government agencies anywhere to ignore the 

>demands of the election software license based on their own criteria.

>That goes way too far.

> 

>It is appropriate for the software community to work with government 

>agencies on security, export restrictions, even on industry standards 

>for elections software. Members of CAVO are already very active in 

>those forums.

> 

>GPL plays in that environment very well already. Again the leading 

>example is Linux.

> 

>/Larry

> 

> 

>-----Original Message-----

>From: Josh Berkus [ <mailto:josh at postgresql.org>
mailto:josh at postgresql.org]

>Sent: Friday, September 11, 2015 8:47 AM

>To: License submissions for OSI review <
<mailto:license-review at opensource.org> license-review at opensource.org>; 

>Meeker, Heather J. < <mailto:hmeeker at omm.com> hmeeker at omm.com>

>Subject: Re: [License-review] Submission of OSET Public License for 

>Approval

> 

>On 09/11/2015 10:11 AM, Tzeng, Nigel H. wrote:

>> I was under the impression that most governments were at least  

>>somewhat immune to copyright issues because of sovereign immunity.  I  

>>don¹t think any license really protects against this regardless of the 

>>terms.

>> 

>> I guess someone with standing could still sue for injunctive relief 

>> but doesn¹t strike me as likely.

> 

>Only national governments.  With that wording, even a *city* government 

>could pass a law to make license restrictions inapplicable.

> 

>--Josh Berkus

> 

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