Mary Minow writes that a significant part of the Copyright Remedy Clarification Act of 1990 (CRCA) has been struck down by a California Southern District Court ruling.

In 2006, a marketing research firm sued the CSU system. It alleged that San Diego State University, which had been hired in 2004 to perform annual fiscal impact analyses for the Holiday Bowl games (SDSU had been hired because the marketing research firm, which had performed the analyses previously, had increased its fees), had misappropriated and plagiarized the marketing research firm's earlier reports.

The CRCA reads, in part, that "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment ... from suit in Federal Court ... for a violation of any of the exclusive rights of a copyright owner ...."

In theory, this means that states are now in the clear from being targeted by the federal claims that the CRCA was worded to allow. As the District Court ruling states, "The CRCA was passed with the intent to subject states to liability for copyright infringement."

The major wrinkle is that the ruling appears to protect only state agents or employees who are acting in their "official capacity." As Minow's post points out, there are any number of steps that a plaintiff could take to establish legally that a state employee was not acting in his or her "official capacity." The most germane step would be that an individual sued under federal law (and the CRCA being federal law) can be classified as having acted in his or her "individual capacity" if the plaintiff can establish that an alleged violation was in contravention of protected federal copyright.

The ruling, Marketing Information Masters Inc. v. The Board of Trustees of the California State University System (.pdf), is here. More pleadings in the case are available here.

Thought you had a handle on the concept of copyright? Think again! Last week there was a post on Slashdot entitled, "Should Copyright Be Abolished?" by Greg Bulmash (full article posted on his blog, "Brainhandles"). I think this discussion has relevance to government documents and libraries in general, since we are steadily moving away from a copyright information world and into a licensing information world. I'm trying to get my head around this shift and so welcome the reading material. The ideas of attribution, distribution, DRM, fair use, licensing, public domain... all feature prominently in this discussion.

Bulmash waded into the copyright debate, taking on those in the tech community that seek to abolish copyright. The gist of Bulmash's argument was that "you can't oppose copyright and support open source." Bulmash opines that the GNU Public License, the license under which much open-source software is distributed (there are several flavors of open source licenses, but I won't get into that here), depends on copyright to be enforceable. Therefore, you can't have the GPL without copyright. Bulmash argues for reforming copyright, not abolishing it -- "surgery, not euthanasia."

These members of the anti-copyright crowd cite the GPL (GNU Public License) as an alternative to copyright without any sense of the ironic fact that the GPL can't exist without copyright. They're proposing a solution while simultaneously advocating the destruction of the thing that makes their solution workable. While the GPL is less restrictive than other licensing methods, it's a license and it does impose some restrictions on or conditions for use of the work. It is a method of controlling your work. But without copyright, the GPL could not be enforced.

Bulmash was answered the next day by Karl Fogel of Question Copyright in his essay, "Supporting Open Source While Opposing Copyright." Fogel makes a very compelling argument that the abolition of copyright doesn't necessarily go against the spirit of the GPL, nor does the GPL need to rely on copyright in order to forward the cause of open source or free software (two different, but conflated ideas!). He suggested that Bulmash, "mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work." Fogel goes on to state that copyright is simply the current enforcement tool du jour, but is not a natural and uncontroversial "right."

The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced. Take his exercise in imagination all the way: imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

and...

Put bluntly: a future law that merely allows authors to enforce sharing need have little in common with today's laws that allow the restriction of sharing. Since these two things are more opposite than alike, calling them both "copyright" doesn't make much sense. But that is what Bulmash does, when he implies that the current copyright regime (or something structurally similar to it) is the only way the GPL could be enforced.

There are some great comments in both threads so if you have the time, brew a pot of tea, sit down and wade through them. You'll be glad you did because this debate definitely has import to what librarians do!

Mary Minow of Library Law fame announced today that the transcripts from January's Section 108 Study Group roundtables have been published. Minow particapted in the session on ILL, and she shares her thoughts on her blog.

Representative Rick Boucher (D-Va.) and Rep. John Doolittle (R-Calif.) indtroduced a bill last week (H.R. 1201 "Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007" (FAIR USE Act) that would make it easier for scholars to use copyrighted works without running afoul of copyright law. The legislation contains several improvements to the Digital Media Consumer's Rights Act, similar legislation which the lawmakers introduced in the 108th and 109th Congresses. The Electronic Frontier Foundation (EFF) has endorsed the bill while the Recording Industry Association of America (RIAA) says it would "legalize hacking." Anyone care to editorialize?