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Re: 11th Amendment (Re: Essay by Rick Anderson)

In a private message, Eric Massant reminded me that injunctive relief
against the culpable state officials was still possible despite the
11th Amendment. I replied as follows:

At 5:41 PM -0500 9/1/10, Sandy Thatcher wrote:
>Yes, I realize that, which is why I specifically said "suit for
>damages" in my posting. But when the discussion of this loophole was
>going on within AAP, everyone agreed that injunctive relief was not
>much of a deterrent, and that publishers would go crazy chasing down
>every individual state official who might have crossed the line. The
>embarrassment factor is a much more potent weapon here, i
>think--although it didn't prevent the University of California from
>copying software: BV Engineering vs. UCLA (1988). As Ken Crews
>summarized it:
>"In one notable case, a software producer sued UCLA, alleging
>infringement of it copyrighted programs. The federal district court
>dismissed the case against UCLA; the state university could not be
>held liable in federal court. The Court of Appeals affirmed that
>decision, and the U.S. Supreme Court refused to hear the case. The
>immunity of UCLA and other state institutions was established.

So, maybe even Phil Davis couldn't embarrass some universities enough! :)

Sandy Thatcher

At 5:16 PM -0400 9/1/10, Rick Anderson wrote:
> > if yours is a university press attached to a state institution,
>>  the 11th Amendment's provision for immunity allows your press
>>  to republish anything published by a private publisher (whether
>>  a university press at a private university or any commercial
>>  publisher) and pricing it in any way you want without exposing
>>  you to a suit for damages for copyright infringement.
>Thanks to Sandy for pointing this out.  Of course, the universe
>has provided something of a failsafe to prevent this kind of
>publishing behavior, in the form of Phil Davis -- if any
>state-subsidized UP were to try repackaging and republishing
>another publisher's content, Phil would be all over it before the
>print could dry.  (As he should be.)
>Rick Anderson
>Assoc. Dir. for Scholarly Resources & Collections
>Marriott Library
>Univ. of Utah

Sanford G. Thatcher
8201 Edgewater Drive
Frisco, TX  75034-5514
e-mail: sandy.thatcher@alumni.princeton.edu
Phone: (214) 705-1939

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