[License-review] An aside about CRCA and open source licenses

John Cowan cowan at mercury.ccil.org
Sat Sep 12 02:55:06 UTC 2015

Lawrence Rosen scripsit:

> "A statute that clearly invokes the constitutional provision on which
> Congress is relying to pass it 'precludes consideration' of alternative
> justifications."

Interesting in that it undermines legal positivism once and for all.
My father would be happy.  :-)

> 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.

That's why a certain copyright-law case was Ashcroft v. Eldred instead of
U.S. v. Eldred.  The AG wasn't out of pocket for it.

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

As far as I can tell, nothing.  The CRCA has been held unconstitutional
in the 1st, 2nd, 4th, 5th, 6th, 9th, and 11th Circuits, so it's probably
just a matter of time before it dies altogether.  Wikipedia says no
court has enforced it against any state.

John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
You're a brave man! Go and break through the lines, and remember while
you're out there risking life and limb through shot and shell,
we'll be in here thinking what a sucker you are!    --Rufus T. Firefly

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