[Videolib] sovereign immunity and copyrights

Cameron Cox (ccox@intelecom.org)
Mon, 16 Oct 2006 09:42:42 -0700

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Statement below dates to July 27, 2000 =85 as it applies to the =
discussion
about states rights, sovereign immunity (or eminent doman) and copyright
owners. =20

We came across this after learning about a recent development involving =
an
instructional video and print series. In recent months, a large state
educational agency invoked sovereign immunity to justify repackaging and
distributing copyrighted workbooks tied to an educational television =
series
the state had licensed. The original content of the workbooks was =
almost
totally unchanged, and, therefore, would probably never pass the various
tests required to define a derivative product.

Nevertheless, because they are a state agency, so the state has =
allegedly
argued, they can do whatever they want with the workbooks; copyright law =
or
no copyright law. It remains to be seen if the copyright owners will =
take
action to cease further distribution of their works or recover damages.

Cameron Cox
INTELECOM

###

Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary

United States House of Representatives
106th Congress, 2nd Session=20

July 27, 2000

State Sovereign Immunity and Protection of Intellectual Property=20

_____ =20

Mr. Chairman, Congressman Berman, Members of the Subcommittee, thank you =
for
inviting me to appear before the Subcommittee today. It is always a =
pleasure
to testify before this Subcommittee, and I appreciate the opportunity to
present my views on the important issues of state sovereign immunity =
from
suits for infringement of intellectual property rights.

We can probably all agree that when a State, or a State agency or an =
officer
or employee of a State acting in an official capacity, infringes a =
copyright
or another federal intellectual property right, the State should be held
accountable for that infringement just as any other person or entity =
would
be. For most of our history, it has been assumed that the States enjoyed =
no
special immunity from suits for infringement of intellectual property
rights, but in the past fifteen years those assumptions have been called
into question as the Supreme Court has breathed new life into the =
doctrine
of sovereign immunity. Last year, the Court held that provisions of the
patent law and the Lanham Act permitting suits for damages against =
States
were unconstitutional, and the Court offered little reason to hope that =
the
analogous provision in the Copyright Act could be found constitutional. =
This
year a court of appeals held that the copyright law provision is
unconstitutional, and today we find ourselves in a situation where =
States
can infringe copyrights, patents, and trademarks with impunity.

Today I would like to provide you with some background information to
explain how we arrived at the current unsatisfactory situation. I will =
then
describe the current state of the law. Finally, I will offer a preview =
of
some of the alternatives Congress may wish to consider if, as I believe =
it
should, it decides to take action in response to the recent decisions of =
the
Court.

I. Background

The doctrine of sovereign immunity is an ancient legal principle, dating
back to feudal Europe, when power flowed from the King down through the
nobility and very little trickled down to the peasantry. It is rooted in =
the
premise that to submit to the jurisdiction of a court implies that one =
is
subservient or inferior to the power of that court. To understand this, =
one
must recall that in feudal times courts were not judicial bodies as we =
have
come to understand them in the United States today, but rather the =
courts of
a King or feudal Lord, often presided over by the King or Lord himself.
Thus, even a court of the King, which derived its authority from the =
King
himself, could not exercise any authority over the King unless the King
should consent.

Because the American model of government presumes the opposite of feudal
structures, that power flows up from the people to the States and to the
Federal Government, the application of sovereign immunity is far less
intuitive. Indeed, the modern application of this doctrine is =
controversial
precisely because it is fundamental to the relationship of the =
government to
the people and of the Federal Government to the States. It is the latter
relationship which we are considering today. The specific question =
raised by
the topic of today's hearing is: are States permitted (and if so, should
they be permitted) to run afoul of valid federal laws protecting
intellectual property without subjecting themselves to the monetary
liability to which all others are vulnerable?

In the United States, state sovereign immunity is articulated by the
Eleventh Amendment to the Constitution.
<http://www.copyright.gov/docs/regstat72700.html#N_1_> (1) The Eleventh
Amendment was adopted in 1795, but its true meaning remains a subject of
much discussion. Last year the Supreme Court breathed new life and =
vitality
into the doctrine of state sovereign immunity. In June of 1999, the =
Supreme
Court handed down a trio of rulings that, taken together, dramatically
altered the landscape of the enforceability of federal law with regard =
to
States. <http://www.copyright.gov/docs/regstat72700.html#N_2_> (2) In =
order
to fully appreciate the context of these rulings, it is necessary to =
review
the prior precedent and developments in the law.

The United States passed its first Copyright Act in 1790. There is no
decision in the ensuing 172 years that invoked sovereign immunity to =
exempt
States from any of the remedies available under the Copyright Act. Then, =
in
1962, the United States Court of Appeals for the Eighth Circuit =
dismissed a
copyright infringement suit against a state agency on sovereign immunity
grounds. <http://www.copyright.gov/docs/regstat72700.html#N_3_> (3) =
However,
that case did not usher in a new era of sovereign immunity.

Just two years later, the Supreme Court issued its ruling in Parden v.
Terminal Railway of Alabama (Parden).
<http://www.copyright.gov/docs/regstat72700.html#N_4_> (4) In that case,
employees of a state-owned railroad sued the State of Alabama in federal
court under the Federal Employees' Liability Act (FELA). FELA =
specifically
created a cause of action in federal court against "every common carrier =
by
railroad" for damages suffered by employees from job-related personal
injuries.

In addressing Alabama's sovereign immunity defense, the Court engaged in =
a
three-step analysis. First, the Court discussed whether Congress =
intended to
subject States to suit under FELA. The Court reasoned that the express
language of the statute created a cause of action against "every common
carrier," and absent express language to the contrary, a statutory =
exception
for States should not be presumed. Thus, the Court determined that =
Congress
did intend to subject States to suit in federal court under FELA.

Second, the Court considered whether Congress had the power to subject a
State to suit in federal courts notwithstanding the Eleventh Amendment. =
The
Court found that in giving Congress the power to regulate interstate
commerce, the States had surrendered any sovereign immunity that would
impede that regulation. Therefore, in acting under its Commerce Clause
power, Congress could abrogate state sovereign immunity.=20

Finally, the Court queried whether Alabama's operation of a railroad in
interstate commerce after its waiver of sovereign immunity implied that =
the
State had consented to suit in federal court under FELA. Finding that it
did, the Court held that "when a State leaves the sphere that is =
exclusively
its own and enters into activities subject to congressional regulation, =
it
subjects itself to that regulation as fully as if it were a private =
person
or corporation." <http://www.copyright.gov/docs/regstat72700.html#N_5_> =
(5)

Because the Copyright Act, in language very similar to FELA, provided =
for
suit against "anyone" =
<http://www.copyright.gov/docs/regstat72700.html#N_6_>
(6) who infringed a copyright, the decision in Parden left little doubt =
that
States could be sued for copyright infringement.

Over time the decision in Parden was gradually eroded. More than twenty
years after Parden, in Atascadero State Hospital v. Scanlon =
(Atascadero),
<http://www.copyright.gov/docs/regstat72700.html#N_7_> (7) the Court
reversed itself on the legislative requirements necessary to find
congressional intent to abrogate state sovereign immunity. In that case, =
a
disabled person sued a state hospital in federal court for alleged
employment discrimination. The suit was brought pursuant to the
Rehabilitation Act of 1973, a statute which the Court assumed had been
enacted under the authority of Section 5 of the Fourteenth Amendment. =
The
statute provided for remedies against "any recipient of Federal =
assistance,"
a class that arguably included States.

The Court recognized Congress' power to abrogate a State's immunity in
circumstances in which "the usual constitutional balance between the =
States
and the Federal Government does not obtain."
<http://www.copyright.gov/docs/regstat72700.html#N_8_> (8) The Court =
went on
to hold that in the instant case, the Eleventh Amendment barred recovery
from the States because a "general authorization for suit in federal =
court
is not the kind of unequivocal language sufficient to abrogate the =
Eleventh
Amendment." <http://www.copyright.gov/docs/regstat72700.html#N_9_> (9)
Rather, what is required for congressional abrogation of state sovereign
immunity is that the federal statute be "unmistakably clear" that States =
are
included in the defendant class.

Under this more stringent test, the language of many statutes that had =
been
assumed to abrogate sovereign immunity, including the Copyright Act, the
Patent Act, and the Lanham Act, failed to achieve that purpose. Thus, =
there
was reason to believe that States might be immune to suits for damages =
under
the Copyright Act and the other federal intellectual property laws..

The Supreme Court issued another significant ruling in 1989 in =
Pennsylvania
v. Union Gas Co. (Union Gas).
<http://www.copyright.gov/docs/regstat72700.html#N_10_> (10) That case
involved a suit by a private company against the State for third-party
liability under the Comprehensive Environmental Response, Compensation, =
and
Liability Act of 1980 (CERCLA) to recover certain costs to clean a spill =
of
coal tar into a creek.

The Court considered two questions. First, did CERCLA clearly abrogate =
state
sovereign immunity? The Act provided for the liability of "persons" and
included within its definition of that term, "States." This provision, =
along
with the presence in the Act of language excepting States from liability =
in
particular circumstances, satisfied the Court that the law was =
unmistakably
clear in its intent to make States liable in all but the excepted =
instances.
Thus, the Court quickly concluded that CERCLA did properly purport to
abrogate state sovereign immunity.

The second question the Court considered was whether Congress had =
authority
to enact such an abrogation. CERCLA was enacted pursuant to Congress'
Article I, Section 8 authority, specifically, the Commerce Clause. A
plurality of the Court found that "to the extent that the States gave
Congress the authority to regulate commerce, they also relinquished =
their
immunity where Congress found it necessary, in exercising this =
authority, to
render them liable." =
<http://www.copyright.gov/docs/regstat72700.html#N_11_>
(11)=20

This ruling strengthened the hand of copyright owners. However, the
uncertainty arising from the Atascadero decision remained.

As a result of that uncertainty, Congress acted. In 1990 Congress =
enacted
the descriptively-named Copyright Remedy Clarification Act (CRCA).
<http://www.copyright.gov/docs/regstat72700.html#N_12_> (12) That law =
added
to Title 17 provisions which state in clear terms that remedies for
infringement are available against States, and that States "shall not be
immune, under the Eleventh Amendment of the Constitution . . . or any =
other
doctrine of sovereign immunity, from suit in Federal Court . . . for a
violation of the exclusive rights of a copyright owner . . . ."
<http://www.copyright.gov/docs/regstat72700.html#N_13_> (13) These clear
statements left little doubt that Congress intended to make States =
liable
for infringement and to abrogate their sovereign immunity. Thus, once =
again,
the apparent uncertainty about the immunity of States from suits for =
damages
for copyright infringement was removed.

A substantial portion of the legislative history of the CRCA, which =
would
later become critical, was a June, 1988 report produced by the Copyright
Office entitled "Copyright Liability of States and the Eleventh =
Amendment."
That report surveyed the legal history of the Eleventh Amendment and =
applied
contemporary Supreme Court jurisprudence to copyright infringement suits
against States. As part of that application, the report cited several
instances of alleged copyright infringement by States that had been =
brought
to the Office's attention. Additionally, a Congressional Research =
Service
survey of waivers of sovereign immunity by States and the extent of =
those
waivers was appended to the Copyright Office report.

Congress followed the CRCA in 1992 with the Trademark Remedy =
Clarification
Act <http://www.copyright.gov/docs/regstat72700.html#N_14_> (14) (TRCA) =
and
the Patent and Plant Variety Remedy Clarification Act
<http://www.copyright.gov/docs/regstat72700.html#N_15_> (15) (PRCA). =
These
acts were nearly identical to the CRCA. Taken together, the three acts
appeared to settle the issue of state liability for infringement of
intellectual property.

The series of positive developments for intellectual property owners =
ended
with the enactment of the TRCA and the PRCA. What followed was a series =
of
highly controversial decisions, almost all by a highly charged 5-4 vote.

Four years after the TRCA and PRCA were enacted, the Court handed down =
its
ruling in Seminole Tribe of Florida v. Florida (Seminole Tribe).
<http://www.copyright.gov/docs/regstat72700.html#N_16_> (16) That case
involved a suit by an Indian tribe under the Indian Gaming Regulatory =
Act to
compel the State of Florida to engage in good faith negotiations with =
the
Tribe. The Act was adopted pursuant to Congress' Article I, Section 8
authority: the Indian Commerce Clause.

The Court considered the same two issues it had considered in Union Gas. =
The
first was whether Congress has "unequivocally expresse[d] its intent to
abrogate [state] immunity."
<http://www.copyright.gov/docs/regstat72700.html#N_17_> (17) The Act =
left
little room for discussion. It instructed that district courts would =
have
jurisdiction to hear cases arising from the failure of a State to engage =
in
good faith negotiations. Obviously, only States could be defendants in =
such
actions and therefore Congress, in enacting this provision, clearly =
intended
the States' immunity to be abrogated. The Court reached this conclusion
quickly.

The second issue was whether Congress had authority to enact such an
abrogation. At the outset of its analysis, the Court noted that "we have
found authority to abrogate under only two provisions of the =
Constitution .
. . the Fourteenth Amendment . . . [and] the Interstate Commerce Clause =
. .
. ." <http://www.copyright.gov/docs/regstat72700.html#N_18_> (18) =
Because
the Act being reviewed was adopted pursuant to Article I authority, the
Union Gas decision was strong support for the constitutionality of the =
Act
in this case. However, by a 5-4 vote the Court reversed itself and =
overruled
Union Gas, finding that "the background principle of state sovereign
immunity embodied in the Eleventh Amendment is not so ephemeral as to
dissipate when the subject of the suit is an area, like the regulation =
of
Indian commerce, that is under the exclusive control of the Federal
Government." <http://www.copyright.gov/docs/regstat72700.html#N_19_> =
(19)
Thus, after Seminole Tribe, Congress had only its authority under =
Section 5
of the Fourteenth Amendment as a valid source of power to abrogate state
sovereign immunity.

This ruling cast a shadow on the constitutionality of the CRCA, PRCA and
TRCA. Those laws were most intuitively exercises of Congress' Article I
power. Now, in order to sustain the CRCA, PRCA and TRCA, it was =
necessary to
find sufficient authority in the Fourteenth Amendment, which subjected =
those
laws to a much higher level of scrutiny. In his dissent in Seminole =
Tribe,
Justice Stevens noted the potential for the Court's decision to disrupt
numerous fields of federal law because "it prevents Congress from =
providing
a federal forum for a broad range of actions against States, from those
sounding in copyright and patent law, to those concerning bankruptcy,
environmental law, and the regulation of our vast national economy."
<http://www.copyright.gov/docs/regstat72700.html#N_20_> (20)

The Supreme Court turned to the scope of Congress' Fourteenth Amendment
authority the following year in City of Boerne v. Flores (City of =
Boerne).
<http://www.copyright.gov/docs/regstat72700.html#N_21_> (21) In that =
case,
the Supreme Court was faced with the constitutionality of the Religious
Freedom Restoration Act (RFRA), which Congress had enacted to overrule a
previous Court decision and apply the strict scrutiny test to State and
local laws of general applicability that had an incidental effect on the
free exercise of religion. RFRA had been enacted pursuant to Congress' =
power
under Section 5 of the Fourteenth Amendment. The case was brought under =
RFRA
by a Roman Catholic Archbishop to contest the denial of a permit to =
expand a
church building by the Historic Landmark Commission of the city of =
Boerne.

The issue before the Court was whether RFRA was a valid exercise of
Congress' Fourteenth Amendment authority. By a vote of 6-3, the Court =
found
that it was not because it read RFRA as seeking to alter the substantive
meaning of the Fourteenth Amendment and the Free Exercise Clause of the
First Amendment.

The design of the Amendment and the text of =A7 5 are inconsistent with =
the
suggestion that Congress has the power to decree the substance of the
Fourteenth Amendment's restrictions on the States. Legislation which =
alters
the meaning of the Free Exercise Clause cannot be said to be enforcing =
the
Clause. Congress does not enforce a constitutional right by changing =
what
the right is. It has been given the power "to enforce," not the power to
determine what constitutes a constitutional violation.
<http://www.copyright.gov/docs/regstat72700.html#N_22_> (22)

The Court went on to expound upon what standards Congress must adhere in
order to remain within the bounds of its Fourteenth Amendment power. The =
key
to this analysis is that "[t]here must be a congruence and =
proportionality
between the injury to be prevented or remedied and the means adopted to =
that
end." <http://www.copyright.gov/docs/regstat72700.html#N_23_> (23)

While this was not a sovereign immunity case, it is crucial to sovereign
immunity analysis because, after Seminole Tribe, Congress may abrogate =
state
sovereign immunity only pursuant to the Fourteenth Amendment. Thus, this
case set the stage for the courts to review the constitutionality of the
CRCA and parallel legislation concerning patents and trademarks.

That brings us to the Supreme Court's triad of opinions on June 23, =
1999. It
is worth noting that all three of these cases were decided by the same =
5-4
vote and all three engendered strong dissenting views. The decision in =
Alden
v. Maine (Alden) <http://www.copyright.gov/docs/regstat72700.html#N_24_>
(24) undergirded the other two decisions. In that case, John Alden and =
other
employees of the State of Maine filed suit in federal court against that
state for violation of the overtime provisions of the Fair Labor =
Standards
Act, a federal law. In light of the Supreme Court's decision in Seminole
Tribe, the District Court dismissed the action. The dismissal was upheld =
by
the Court of Appeals.

Petitioners then filed the same action in state court in Maine. The =
state
trial court dismissed the suit on grounds of sovereign immunity and the
Maine Supreme Judicial Court affirmed. The United States Supreme Court =
also
affirmed.

The Court's holding in this case went well beyond the routine =
recognition
that a State is a sovereign entity that maintains an immunity to =
lawsuits by
private parties to which it has not consented. The Court's holding is
important because of the broad applicability of state sovereign immunity =
to
the State's own courts as well as to the federal courts.

Specifically, the Court reasoned that the Eleventh Amendment was not the
origin of state sovereign immunity. Rather,

the States' immunity from suit [in the State's own courts and in federal
courts] is a fundamental aspect of the sovereignty which the States =
enjoyed
before the ratification of the Constitution, and which they retain today =
. .
. except as altered by the plan of the Convention or certain =
constitutional
Amendments. <http://www.copyright.gov/docs/regstat72700.html#N_25_> (25)

In this view, then,

[t]he Eleventh Amendment confirmed rather than established sovereign
immunity as a constitutional principle; it follows that the scope of the
States' immunity from suit is demarcated not by the text of the =
Amendment
alone but by fundamental postulates implicit in the constitutional =
design.
<http://www.copyright.gov/docs/regstat72700.html#N_26_> (26)

The Court's conclusion that Congress can abrogate a state's sovereign
immunity only in narrow circumstances owes it origins to this view.
"Although the sovereign immunity of the States derives at least in part =
from
the common-law tradition, the structure and history of the Constitution =
make
clear that the immunity exists today by constitutional design."
<http://www.copyright.gov/docs/regstat72700.html#N_27_> (27) The Court
continued that:

[t]he federal system established by our Constitution preserves the =
sovereign
status of the States in two ways. First, it reserves to them [through =
the
Tenth Amendment] a substantial portion of the Nation's primary =
sovereignty,
together with the dignity and essential attributes inhering in that =
status .
. . . Second, even as to matters within the competence of the National
Government, the constitutional design secures the founding generation's
rejection of "the concept of a central government that would act upon =
and
through the States" in favor of "a system in which the State and Federal
Governments would exercise concurrent authority over the people--who =
were,
in Hamilton's words, the only proper objects of government."
<http://www.copyright.gov/docs/regstat72700.html#N_28_> (28)

A preponderance of the opinion of the Court purports to demonstrate, =
through
numerous references, the historical accuracy of its view of the origins =
of
state sovereignty. Interestingly, the Court did not extend respect for a
State's sovereign immunity into the realm of another State's courts.
<http://www.copyright.gov/docs/regstat72700.html#N_29_> (29)

The Court concluded its opinion with an implicit recognition of the
potential for states to profit unfairly from its ruling. Thus, the Court
noted several limits on its holding. First, states may waive their =
immunity
and Congress may provide incentives for such waiver, as provided in =
South
Dakota v. Dole (483 U.S. 203 (1987) .
<http://www.copyright.gov/docs/regstat72700.html#N_30_> (30) Second, the
immunity "bars suits against States, but not lesser entities. The =
immunity
does not extend to suits prosecuted against a municipal corporation or =
other
governmental entity which is not an arm of the State."
<http://www.copyright.gov/docs/regstat72700.html#N_31_> (31) =
Additionally,
injunctive and declaratory relief are not precluded by state immunity.
<http://www.copyright.gov/docs/regstat72700.html#N_32_> (32) Clearly, =
this
leaves the States with a tremendous opportunity to evade federal law. =
The
Court provided cold comfort in its declaration that "[w]e are unwilling =
to
assume the States will refuse to honor the Constitution or obey the =
binding
laws of the United States."
<http://www.copyright.gov/docs/regstat72700.html#N_33_> (33)

In the second of the June 23 cases, the Court applied the principles of =
its
recent decisions to the TRCA in College Savings Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd (College Savings).
<http://www.copyright.gov/docs/regstat72700.html#N_34_> (34) In that =
case,
College Savings Bank sued the State of Florida for false advertising in
federal court under section 43(a) of the Lanham Act. In light of the =
Supreme
Court's decision in Seminole Tribe, the District Court granted Florida's
motion to dismiss on sovereign immunity grounds. The Third Circuit =
affirmed.
The Supreme Court also affirmed.

The Court considered two avenues through which College Savings' claim =
could
survive state immunity. First, that Congress had abrogated state =
immunity
through enactment of the TRCA. Second, that by participating in the =
scheme
of the Lanham Act, States have waived their immunity by implication.
<http://www.copyright.gov/docs/regstat72700.html#N_35_> (35)

The Court first turned to the question of whether the TRCA abrogated =
state
sovereign immunity. As I have already outlined, current Supreme Court
precedent admits only one source of constitutional authority from which
Congress may abrogate state immunity: the enforcement power in Section 5 =
of
the Fourteenth Amendment.
<http://www.copyright.gov/docs/regstat72700.html#N_36_> (36)

The Fourteenth Amendment instructs in relevant part that "No State shall =
. .
. deprive any person of . . . property, without due process of law."
<http://www.copyright.gov/docs/regstat72700.html#N_37_> (37) Because the
Court held that College Savings did not allege deprivation of a property
right within the meaning of the Fourteenth Amendment, the avenue of
congressional abrogation of state immunity was closed.
<http://www.copyright.gov/docs/regstat72700.html#N_38_> (38) The Court =
did
not hold that trademarks are not property. Just the opposite, in fact:

The Lanham Act may well contain provisions that protect =
consti-tutionally
cognizable property interests--notably, its provisions dealing with
infringement of trademarks, which are the "property" of the owner =
because he
can exclude others from using them.
<http://www.copyright.gov/docs/regstat72700.html#N_39_> (39)

However, the Court recognized that College Savings was not suing for
trademark infringement, but for misrepresentation. The right to be free =
from
misrepresentation is not, the Court held, a property right within the
meaning of the Fourteenth Amendment.
<http://www.copyright.gov/docs/regstat72700.html#N_40_> (40)

Next, the Court turned to the question of implied state waiver of =
immunity.
Invoking the precedent of Parden, College Savings sought to show that
Florida had impliedly waived its immunity by participating in a scheme =
that
is enforceable in federal court.
<http://www.copyright.gov/docs/regstat72700.html#N_41_> (41) Not only =
did
the Court reject this argument, but it overruled Parden and renounced =
the
doctrine of implied waiver of state immunity.
<http://www.copyright.gov/docs/regstat72700.html#N_42_> (42)

The Court's holding requires that a state's waiver be explicit and =
voluntary
in order to be effective. However, Congress may provide incentives to =
the
state by conditioning use of its discretionary authority such as that =
found
in the Spending Clause and the Compact Clause on state waiver.
<http://www.copyright.gov/docs/regstat72700.html#N_43_> (43) =
Nonetheless,
the Court apparently disapproves of the use of at least some Commerce =
Clause
authority in this manner:

In the present case, however, what Congress threatens if the State =
refuses
to agree to its condition is not the denial of a gift or gratuity, but a
sanction: exclusion of the State from otherwise permissible activity . . =
. .
[W]e think where the constitutionally guaranteed protection of the =
States'
sovereign immunity is involved, the point of coercion is automatically
passed--and the voluntariness of waiver destroyed--when what is attached =
to
the refusal to waive is the exclusion of the State from otherwise lawful
activity. <http://www.copyright.gov/docs/regstat72700.html#N_44_> (44)

In a companion case, the third of the three opinions issued on June 23,
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,
(Florida Prepaid), =
<http://www.copyright.gov/docs/regstat72700.html#N_45_>
(45) College Savings Bank sued the State of Florida in federal court,
claiming patent infringement. Despite the Supreme Court's ruling in =
Seminole
Tribe, the District Court denied Florida Prepaid's motion to dismiss. =
The
District Court held that Congress had abrogated the State's immunity in =
this
case by virtue of the PRCA.
<http://www.copyright.gov/docs/regstat72700.html#N_46_> (46) The Federal
Circuit affirmed. The Supreme Court reversed.

The question presented was whether Congress' attempt to abrogate state
sovereign immunity was valid. The Court considered this question under =
the
two-part test articulated in Seminole Tribe:

first, whether Congress has "unequivocally expresse[d] its intent to
abrogate the immunity,"...and second, whether Congress has acted =
"pursuant
to a valid exercise of power."
<http://www.copyright.gov/docs/regstat72700.html#N_47_> (47)

The first part of the test was met easily, as the statute was very clear =
on
the point. The second part of the test, however, was not met to the =
Court's
satisfaction.

As noted above, current Supreme Court precedent admits only one source =
of
constitutional authority from which Congress may abrogate state =
immunity:
the enforcement power in Section 5 of the Fourteenth Amendment. It was =
on
this basis that College Savings Bank sought to have the statute upheld. =
The
Court acknowledged that patents are property within the meaning of the
Fourteenth Amendment.
<http://www.copyright.gov/docs/regstat72700.html#N_48_> (48) Thus, the
Fourteenth Amendment's provision that "No State shall . . . deprive any
person of . . . property, without due process of law" was potentially
applicable to patent infringement. However, the Court held that the
legislative enactment at issue in this case did not fall within =
Congress'
Fourteenth Amendment power for several reasons.

First, as the Court held in City of Boerne, Congress "must identify =
conduct
transgressing the Fourteenth Amendment's substantive provisions, and =
must
tailor its legislative scheme to remedying or preventing such conduct."
<http://www.copyright.gov/docs/regstat72700.html#N_49_> (49) The Court =
found
that Congress failed to meet this burden because it did not identify a
pattern of patent infringement by states.
<http://www.copyright.gov/docs/regstat72700.html#N_50_> (50)

Second, the Court recognized that patent infringement by a state is not =
a
violation of the Fourteenth Amendment if the state provides a remedy, =
that
is, due process. <http://www.copyright.gov/docs/regstat72700.html#N_51_>
(51) Because the statute was drafted to apply to all states, without =
regard
to state-provided remedies, the Court held that it went beyond the power
conveyed by the Fourteenth Amendment.
<http://www.copyright.gov/docs/regstat72700.html#N_52_> (52)

Third, the Court noted that "a state actor's negligent act that causes
unintended injury to a person's property does not 'deprive' that person =
of
property within the meaning of the Due Process Clause."
<http://www.copyright.gov/docs/regstat72700.html#N_53_> (53) Because a =
claim
for patent infringement requires no showing of intent in order for the
plaintiff to prevail, the Court held that the legislative enactment at =
issue
in this case was again overbroad.
<http://www.copyright.gov/docs/regstat72700.html#N_54_> (54)

This decision applied the general rule articulated in City of Boerne, =
and
the high barriers erected by that application spelled almost certain =
doom
for the CRCA, which is closely analogous to the PRCA that the Court =
struck
down in Florida Prepaid. However, a glimmer of hope for CRCA's survival =
was
provided by Justice Stevens' dissent. In acknowledging that the =
legislative
history of the PRCA did not meet the Court's newly articulated =
standards,
Justice Stevens noted that:

The legislative history of [the CRCA] includes many examples of =
copyright
infringement by States . . . Perhaps most importantly, the House =
requested
that the Register of Copyrights prepare a study, which he [sic] =
described in
his transmittal letter as, "a factual inquiry about enforcement of =
copyright
against state governments . . . This report contains comments from =
industry
groups, statistics, and legal analysis relating to copyright violations,
actual and potential, by States."
<http://www.copyright.gov/docs/regstat72700.html#N_55_> (55)

Although the Supreme Court has not ruled directly on the =
constitutionality
of the CRCA, the Fifth Circuit applied the Supreme Court's recent =
rulings
early this year in Chavez v. Arte Publico Press (Chavez).
<http://www.copyright.gov/docs/regstat72700.html#N_56_> (56) That case
involved a suit by an author claiming copyright infringement of her book =
by
the University of Houston, a state university.

The court followed the analysis in Florida Prepaid, first inquiring =
whether
Congress identified a pattern of infringement by States. While noting =
that
the legislative history in support of the CRCA, which included the =
report of
the Copyright Office, was somewhat more substantial than that of the =
PRCA,
the court found that the record was still inadequate to support the
legislative enactment. Second, the court noted that in adopting the =
CRCA,
Congress "barely considered the availability of state remedies for
infringement." <http://www.copyright.gov/docs/regstat72700.html#N_57_> =
(57)
That the legislative history did not meet requirements the Court =
articulated
a decade after the law was enacted is not surprising. Thus, the Fifth
Circuit refused to enforce the CRCA.=20

The same result was reached in another Fifth Circuit case, Rodriguez v.
Texas Comm'n on the Arts,
<http://www.copyright.gov/docs/regstat72700.html#N_58_> (58) in a brief
opinion that presumably is based upon the same rationale as that =
circuit's
decision in Chavez. Given the current Supreme Court precedent, it is
difficult to find fault with the ruling in Chavez, and we believe that =
the
CRCA most likely is now bad law.

II. The Current Situation

Copyright owners have but one arrow left in their quiver to prevent or =
deter
infringement of their intellectual property rights by States. That arrow =
is
injunctive relief against particular employees of the State. Although =
the
doctrine of state sovereign immunity has been dramatically strengthened =
in
recent years, the Court has thus far retained the injunctive relief
available under the reasoning of a 1908 case, Ex parte Young.
<http://www.copyright.gov/docs/regstat72700.html#N_59_> (59) The =
reasoning
behind this rule is that when a state official acts in violation of =
valid
federal law, that official is by definition acting outside the scope of =
his
official duties because a State clearly cannot lawfully authorize one of =
its
employees to act in violation of valid federal law. And, an employee of =
a
State is cloaked with the State's immunity only when acting within the =
scope
of his duties. Therefore, an employee of a State who acts in violation =
of a
valid federal law is not immune and may be enjoined from that activity.

The Ex parte Young doctrine provides only limited relief, however, =
because
it provides no compensation for the damages already inflicted upon a
copyright owner due to past infringement by a State. Moreover, given the
Court's movement in recent years, one might question whether this =
doctrine
will remain in force.

The practical question that is begged by the legal analysis is: are the
States taking advantage of their immunity to infringe copyrights? Given =
the
legal structure that the Supreme Court has erected, one might very well
expect the answer to be in the affirmative. And it may very well be so.
Unfortunately, the extent of State infringements is largely unknown at =
this
time, only a year after the decisions in Florida Prepaid, College =
Savings
and Alden. Information on infringements by States has not traditionally =
been
collected, nor is it conveniently available from a single or few =
sources.
Merely reviewing dismissed court cases would overlook a potentially =
large
number of cases never brought because potential plaintiffs see such a =
suit
as futile in the face of the Court's rulings. The question may only be
answered, if at all, by a comprehensive study, and even then there is a
substantial possibility that numerous complaints that were never brought =
to
court are virtually impossible to find. In effect, it may be =
logistically
impossible to satisfy the Court's demands for legislative findings to
support abrogation of state sovereign immunity. What appears certain is =
that
so long as States remain immune from suits for damages from =
infringements of
copyrights and other intellectual property rights, States are likely to =
be
tempted to infringe and the number of actual infringements by States is
likely to increase.

Another subject for which a study would be necessary to ascertain the =
scope
of the problem is the availability of alternative state remedies that =
would
satisfy due process. This information is significantly easier to obtain =
than
alleged infringements because, of course, state law is readily available =
to
innumerable researchers throughout the country. It is our presumption =
that
such measures are largely unavailable. We believe this for several =
reasons.
First, based on the CRS report appended to the 1988 Copyright Office =
study
"Copyright Liability of States and the Eleventh Amendment," few States
appeared to have waived their immunity for copyright infringement suits =
in
federal court. Moreover, copyright infringement suits may be heard only =
in
federal court, so even if a State has waived immunity in its own courts,
they would not offer a proper forum in which the infringement claim =
could be
brought. Finally, State remedies are largely preempted by the Copyright =
Act.
Nonetheless it remains an open question whether the Court would find =
that a
substitute state remedy, such as an action for the uncompensated taking =
of
private property or an action in tort, would not run afoul of preemption =
and
also would satisfy the Fourteenth Amendment's requirement of due =
process.

We do have some sense of the extent to which States make use of the
Copyright Office's registration function. The Copyright Office reviewed =
the
registrations issued to four-year state colleges and universities for
monographs <http://www.copyright.gov/docs/regstat72700.html#N_60_> (60)
since 1978. Over 32,000 such registrations were found. That is an =
average of
645 registrations for each State. Put differently, on average the =
Copyright
Office has issued a registration for a work by a State (not including =
State
entities other than four-year colleges and universities, and not =
including
serials) once every twelve calendar days for the last twenty-two years.
Clearly, States are availing themselves of the copyright protection =
provided
by federal law.

III. Possible Solutions

Although the purpose of this oversight hearing is to explore the nature =
of
the problem rather than to consider legislation to remedy the problem, =
it is
important that this Subcommittee understand what alternatives Congress =
will
have when, as I hope it will do, it decides to redress the imbalance =
created
by the recent decisions of the Supreme Court in this area. Let me make =
it
clear that I believe Congress should act. I recognize that the =
legislative
calendar makes such action highly unlikely this year, and I also =
understand
that many parties crucially interested in this issue believe that =
further
study is required before an effective legislative response can be
identified. An effective solution may be difficult to reach in light of =
the
constraints placed upon Congress by the current majority on the Supreme
Court.

But legislation should be considered in the next Congress, and I hope =
that
this hearing serves as a valuable first step in that process. Although =
the
Supreme Court has created formidable constitutional impediments to
abrogation of States' sovereign immunity, neither the Court nor, I =
believe,
anybody else has asserted that States should not be held accountable =
when
they infringe copyrights, patents or trademarks. As I have already
mentioned, States take advantage of the copyright laws by owning =
valuable
copyrights, as reflected in their registration practice. I believe the =
same
is true with respect to patents and trademarks. Why should States be =
able to
enjoy the benefits of federal intellectual property protection if they =
are
not subject to the same burdens that govern other participants in the
federal intellectual property system? And even if a State were to decide =
not
to take advantage of copyright, patent and trademark law, should not a =
State
be held responsible for the harm it causes to a copyright owner--or to a
patent or trademark owner--when it becomes an infringer?

Several months before the Court handed down its opinions in Florida =
Prepaid,
College Savings and Alden, the Copyright Office (anticipating =
unfavorable
outcomes) began to investigate the options for legislative responses to
holdings invalidating the abrogation of sovereign immunity. After the =
Court
ruled, several Members of Congress, including the Chairman of this
Subcommittee, asked that we suggest legislative approaches to this =
problem.
In doing so we were guided by two equally important principles:
constitutionality and effectiveness. A proposal that fails either of =
these
criteria is of little value.

One option that was considered was to amend 28 U.S.C. =A7 1338(a) to =
permit
suits against States in state courts. The Supreme Court's decision in =
Alden,
that state immunity in state courts is equal to state immunity in =
federal
courts, virtually eliminates the effectiveness of this option. States =
still
have the ability to block the courthouse door to copyright owners.
Permitting suit in state courts would be an improvement only to the =
extent
States have waived their immunity in their own courts.
<http://www.copyright.gov/docs/regstat72700.html#N_61_> (61) It is not =
known
how many (if any) States fall into that category. Further, those that do
could simply revoke that waiver and defeat this maneuver.

There are also certain drawbacks to this approach, even if it were
effective. The current exclusive federal jurisdiction to hear copyright
cases under 28 U.S.C. =A7 1338 reflects a congressional determination =
that the
copyright system would function more effectively if relatively uniform
decisions could be achieved. If state courts are permitted to hear =
copyright
cases, the potential would exist for at least 50 different =
interpretations
of the same federal statutory provision. Although the final decision
rendered in the state court system would be reviewable by the U.S. =
Supreme
Court, the Court would only be able to take a very small fraction of the
cases in order to resolve conflicting interpretations.

Additionally, state court judges at all levels have virtually no =
experience
with the copyright law. Even if state courts were given jurisdiction to =
hear
copyright cases against the States, the volume of cases could be =
expected to
be fairly low, affording state court judges little opportunity to gain
experience. <http://www.copyright.gov/docs/regstat72700.html#N_62_> (62)

Another option we considered is to condition States' receipt of certain
federal funds on a waiver of immunity for infringement suits. The =
leading
case for determining the validity of such an enactment is South Dakota =
v.
Dole. <http://www.copyright.gov/docs/regstat72700.html#N_63_> (63) That =
case
set forth a four-part test:

* The exercise of the spending power must be in pursuit of the general
welfare;
* The condition must be unambiguous, enabling the States to exercise
their choice knowingly;
* The conditioned spending must be related to the Federal project or
program; and
* The condition must not be barred by other constitutional provisions.

The first two conditions are satisfied easily. The third is not easily
satisfied. Unlike driving and highway funds, copyrights do not easily =
relate
to federal spending. =
<http://www.copyright.gov/docs/regstat72700.html#N_64_>
(64) Some have suggested tying waiver of immunity to federal spending on
higher education, but this would be politically unpopular, and I would =
not
support legislative action that would penalize our colleges and =
universities
by withholding needed funds simply because state legislatures are =
unwilling
to waive their sovereign immunity. We have not found any case law =
regarding
spending-conditioned waiver of state sovereign immunity, but the Court's
decisions in both Alden and College Savings explicitly refer to the =
spending
power as a legitimate means of inducing voluntary State waiver. However, =
if
the Court finds the amount of money conditioned to be so great as to =
become
coercive, it may strike down the condition. There is little or no =
guidance
on what qualifies as coercive in the case law. One legislative drawback =
of
this option is that it might require re-enactment in appropriations
legislation every year.

A third option is to empower a federal agency to bring actions against
States for violating copyright rights of private parties. State =
sovereign
immunity does not extend to suits brought by the United States. Thus,
federal agencies could, at least theoretically, be used to circumvent =
that
immunity.

There are numerous problems with this approach. First, any agency =
charged
with enforcing copyrights against States would probably require =
significant
resources to conduct such actions. During a period when Congress places
great emphasis on fiscal discipline, it seems unlikely that such an =
agency
would be adequately staffed and funded.

Second, under the doctrine of Ex Parte Young, a private litigant can =
bring
an action against a state officer to obtain prospective injunctive =
relief
against continuing violations of federal law.
<http://www.copyright.gov/docs/regstat72700.html#N_65_> (65) In the
copyright context that means that an individual can stop a continuing
infringement by a State, but has no remedy for the State's past
infringements. Unless a structure can be devised whereby the federal =
agency
can obtain damages for past infringements and turn them over to =
copyright
owners, it is difficult to see any advantage to enforcement by a federal
agency that cannot already be obtained under Ex Parte Young. Such a
structure might have been available in the form of a qui tam suit, where =
an
individual is authorized to pursue a right of action of the Federal
Government. However, the use of qui tam suits to circumvent state =
sovereign
immunity is of questionable constitutionality, and the Supreme Court
recently noted that "there is 'a serious doubt' on that score."
<http://www.copyright.gov/docs/regstat72700.html#N_66_> (66)

Third, past rulings of the Supreme Court cast doubt on whether an effort =
to
substitute a federal agency for the copyright owner in order to =
circumvent
state sovereign immunity would be upheld. In New Hampshire v. Louisiana,
<http://www.copyright.gov/docs/regstat72700.html#N_67_> (67) the Supreme
Court dealt with a situation very close to the one contemplated by this
option. In that case, several individuals with creditor claims against =
the
State of Louisiana assigned those rights to the State of New Hampshire.
Their hope was that New Hampshire would be able to proceed against =
Louisiana
where individuals were met with the roadblock of sovereign immunity. The
Court did not allow the scheme to prevail, holding that "one State =
cannot
create a controversy with another State . . . by assuming the =
prosecution of
debts ow[ed] by the other State to its citizens."

Similarly, in North Dakota v. Minnesota,
<http://www.copyright.gov/docs/regstat72700.html#N_68_> (68) North =
Dakota
sued Minnesota for damages to state and private property as a result of
flooding caused by Minnesota's rerouting of a river. The Court noted =
that
the farmers whose lands were damaged contributed to a fund to pay for =
this
litigation and that those contributors would share in any damages award.
Citing New Hampshire v. Louisiana, the Court dismissed the claims for =
damage
to private property on grounds of sovereign immunity.

Further, citing these cases, the Supreme Court held in Hawaii v. =
Standard
Oil Co. <http://www.copyright.gov/docs/regstat72700.html#N_69_> (69) =
that:

[a]n action brought by one State against another violates the Eleventh
Amendment if the plaintiff State is actually suing to recover for =
injuries
to designated individuals.
<http://www.copyright.gov/docs/regstat72700.html#N_70_> (70)

It is uncertain whether the Federal Government could succeed in =
championing
the cases of individuals where States could not. However, these =
decisions
cast serious doubt on the constitutionality of this option.

Fourth, expansion of the role of the Federal Government in a sphere that =
has
heretofore been the sole concern of private litigants runs counter to =
recent
trends in government. It would be difficult to defend the use of =
taxpayer
money to litigate on behalf of multi-million dollar corporations. Of =
course,
if the Supreme Court has left no other option for the effective =
enforcement
of intellectual property rights, the justification might be easier to =
find.

A fourth option is for Congress to abrogate state sovereign immunity by
appropriately-tailored legislation under Section 5 of the Fourteenth
Amendment. As noted above, the Supreme Court's decision in Florida =
Prepaid
severely limits the application of this option. In order to adopt a =
strong
abrogation provision that would still be within the limitations of =
Florida
Prepaid, the legislation would have to be tailored to meet three =
criteria.

First, Congress must establish a strong record of infringement by =
States.
If, as would be desirable, the legislation were to include patent and
trademark, a record of infringement by States of those rights must be
established as well. As noted above, this record is not currently =
available.
Second, the abrogation must be drafted so that it applies only to States
that do not provide a remedy or some form of due process to an aggrieved
copyright owner. Such remedies need not be equivalent to the standards =
of
Title 17. This option therefore carries with it a risk of undermining
national uniformity of copyright protection. It is unclear whether the
abrogation must be flexible so as to apply only to States that provide =
no
remedy at the time a particular suit is brought (or for the entire =
duration
of a suit), or whether the availability of remedies at the time of =
enactment
permanently defines the scope of the abrogation. Third, the abrogation =
may
only extend to non-negligent infringement by a State. Additionally, an
abrogation provision drafted so as to maximize its chances of surviving
judicial scrutiny by requiring individual plaintiffs to demonstrate a
deprivation of property without due process, thus obviating the need for
extensive legislative findings, might be impractical for individual
litigants and thus ineffective.

A fifth option is to condition States' exercise of federal intellectual
property rights, including copyright, patent and trademark rights, on a
waiver of sovereign immunity for infringement suits. In College Savings, =
the
Court overturned Parden and completely eliminated the implied waiver
doctrine. This option, therefore, would have to be structured to induce
States affirmatively to waive their sovereign immunity, most likely by =
state
statute. This could be accomplished by rendering state works ineligible =
for
protection in the absence of an express waiver by the State of its =
immunity
in copyright infringement cases. The incentive for States to waive their
immunity could be made even stronger by tying the issues of copyright,
patent, and trademark infringement together. There is a symmetry to this
approach. It is clear and salable, with a compelling proportionality and
nexus between the problem and the remedy.

There is language in the majority opinion in College Savings that could =
be
read as a dicta commentary suggesting that if Congress conditions =
State's
access to protections under a law enacted pursuant to the Commerce =
Clause on
waiver of state immunity, such waiver is not voluntary and thus not =
valid.
However, the better reading of the relevant language is that implied =
waiver
is inherently involuntary but that where Congress clearly gives the =
State a
choice, so long as the choice is not coercive, a State's choice to
explicitly waive its immunity is effective.

There is little case law on express waiver, and what little there is =
focuses
on whether or not an express waiver occurred, rather than on the State's
motivation in waiving immunity. In other contexts of waivers of
constitutional rights or immunities, the Court has looked to the
circumstances surrounding the waiver and, on occasion, found the waiver =
to
be ineffective where it was essentially coerced. This option arguably
contains an element of coercion because it conditions States' =
enforcement of
intellectual property rights on a waiver of immunity.

Some may view this approach as overly coercive, although the Copyright
Office has not yet heard a legal argument that persuasively supports =
that
view. There are two strong counter-arguments: First, this approach is no
more coercive than the unilateral abrogation of State immunity in =
current
law. While that law is probably unenforceable in light of the Court's
rulings, it was nonetheless adopted with the support of many current =
Members
of Congress. Unlike abrogation, States would be given a real choice =
between
waiving immunity or accepting the consequences. As discussed below, many
States may take the latter course. Second, there is a strong nexus =
between
the consequences of not waiving immunity and the problem that a waiver =
is
intended to solve. In the absence of waiver, copyright owners are =
deprived
of their rights. This approach merely imposes the same result on =
non-waiving
States. The issue is one of fundamental fairness.

It is far from a foregone conclusion that States will uniformly waive =
their
immunity under this approach. Many States may conclude that immunity =
from
copyright infringement suits serves their interests better than the =
ability
to enforce their own copyrights, and that the same is true with respect =
to
patents and trademarks. Linking all federal intellectual property rights
(including copyright, patent, and trademark) together would strengthen =
the
incentive for States to waive their immunity.

After reviewing the above options, the Copyright Office came to two
conclusions. First, an approach that would effectively abrogate state
sovereign immunity from suits for infringement of federal intellectual
property rights would be the most desirable approach. A straightforward
return to the status quo as it was before the Supreme Court ruled on the
constitutionality of the PRCA and the TRCA would resolve the issue in a =
fair
and equitable way. Unfortunately, that is the one approach that the =
rulings
of the Court have clearly foreclosed. The variation on this approach =
that
would attempt to abrogate sovereign immunity by navigating the minefield =
of
conditions laid down by the Court is problematic. We do not yet know =
whether
Congress could build a record of findings that would satisfy the Court =
that
abrogation is justified. Even if it did, the limitation to cases of
non-negligent infringement could lead to denial of relief in a =
significant
number of cases of infringement. We are skeptical whether this approach
would satisfy both requirements of constitutionality and effectiveness.=20

At the beginning of this year, we sent you a draft of legislation that =
we
believe would be both constitutional and effective. It follows the fifth
approach that I outlined above. The centerpiece of the proposal is a
provision that would prospectively strip a State's intellectual property =
of
protection unless that State waived its sovereign immunity for =
intellectual
property suits in federal court. This provision would effectuate itself =
by
operation of law. For the reasons discussed above, we believe that this
approach is the best opportunity for a solution that is both =
constitutional
and effective.

Senator Leahy introduced S. 1835, the Intellectual Property Protection
Restoration Act, on October 29, 1999. The overall approaches of the two
proposals are similar. The fact that Senator Leahy and the Copyright =
Office
independently arrived at similar approaches after considering a number =
of
alternatives lends support to our belief that it is the best of a number =
of
imperfect alternatives.

We have discussed our proposal with other interested parties and, in
response to their comments, have modified it in some respects. This is =
not
the occasion to address the details of our proposal or Senator Leahy's, =
but
we hope that the next Congress will be in a position to consider and =
enact
effective and constitutional legislation that will undo the damage =
caused by
the Court's recent decisions.=20

Some appear to advocate that Congress not seek to enact a solution right
away, but rather wait and see how the situation develops. This approach =
has
the benefit of providing ample time for studies that may be necessary if
Congress ultimately chooses to attempt to abrogate state sovereign =
immunity.
However, this approach also delays justice to aggrieved copyright =
owners,
and if Congress ultimately does not choose to enact an abrogation =
provision,
the delay will have been largely unnecessary.

IV. Conclusion

It is only logical that in the current legal environment, without an
alteration of the status quo, infringements by States are likely to
increase. Only Congress has the power to remedy the existing imbalance, =
and
it is the recommendation of the Copyright Office that it do so. The =
Supreme
Court's rulings and State's rights must surely be respected, but the =
current
state of affairs is unjust and unacceptable. Congress should use the =
tools
it has to prevent the successful assertion of state sovereign immunity =
where
it has become a tool of injustice.

_____ =20

1. "The Judicial power of the United States shall not be construed to =
extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects =
of
any Foreign State." U.S. Const., amend. XI.=20

2. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense =
Bd.,
119 S. Ct. 2219 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. =
v.
College Savings Bank, 119 S. Ct. 2199 (1999); Alden v. Maine, 119 S. Ct.
2240 (1999).=20

3. Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).=20

4. 377 U.S. 184 (1964).=20

5. Id. at 196.=20

6. 17 U.S.C. =A7 501(a).=20

7. 473 U.S. 234 (1985).=20

8. Id. at 242.=20

9. Id. at 246.=20

10. 491 U.S. 1 (1989).=20

11. Id. at 19-20.=20

12. Pub. L. No. 101-553.=20

13. 17 U.S.C. =A7 511.=20

14. 15 U.S.C. =A7=A7 1122, 1125(a)(2).=20

15. 35 U.S.C. =A7=A7 271(h), 296.=20

16. 517 U.S. 44 (1996).=20

17. Id. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).=20

18. Id. at 59 citing Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976);
Pennsylvania v. Union Gas, 491 U.S. 1, 19-20 (1989).=20

19. Seminole Tribe, 517 U.S. at 72.=20

20. Id. at 77 (Stevens, J., dissenting).=20

21. 521 U.S. 507 (1997).=20

22. Id. at 519.=20

23. Id. at 520.=20

24. 119 S. Ct. 2240 (1999).=20

25. Id. at 2246-47.=20

26. Id. at 2254.=20

27. Id. at 2256 (emphasis added).=20

28. Id. at 2247 (quoting Prinz v. United States, 521 U.S. 898, 919-20
(1997)(quoting The Federalist No. 15 at 109)).=20

29. Id. at 2258-59 ("[T]he Constitution did not reflect an agreement =
between
the States to respect the sovereign immunity of one another....").=20

30. Id. at 2267.=20

31. Id.=20

32. Id.=20

33. Id. at 2266.=20

34. 119 S. Ct. 2219 (1999).=20

35. Id. at 2222.=20

36. Id. at 2223.=20

37. U.S. Const., amend. XIV.=20

38. College Savings, 119 S. Ct. at 2224-25.=20

39. Id. at 2224.=20

40. Id. at 2224-25.=20

41. Id. at 2226.=20

42. Id. at 2228.=20

43. Id. at 2231.=20

44. Id.=20

45. 119 S. Ct. 2199 (1999).=20

46. 35 U.S.C. =A7=A7 271(h), 296(a).=20

47. Florida Prepaid, 119 S. Ct. at 2205.=20

48. Id. at 2206.=20

49. Id. at 2207.=20

50. Id.=20

51. Id. at 2208.=20

52. Id. 2210.=20

53. Id. at 2209 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)).=20

54. Id. at 2210.=20

55. Id. at 2215 n.9 (Stevens, J., dissenting).=20

56. 204 F.3d 601 (5th Cir. 2000).=20

57. Id. at 606.=20

58. 199 F.3d 279 (5th Cir. 2000).=20

59. 209 U.S. 123 (1908).=20

60. Monographs are individual works such as a book, poem, or song. Not
included in the survey were serial registrations such as magazines. =
Based on
a brief investigation into the number of serials registered by certain =
state
universities, the Copyright Office has reason to believe that such
registrations may approach or even equal the number of monograph
registrations that were found.=20

61. This assumes that States will generally not waive their immunity in
federal courts without some incentive. Of course, where a State has =
waived
its immunity from suits to enforce intellectual property rights in =
federal
courts, no remedy is needed.=20

62. Similar concerns underlie the exclusive federal jurisdiction for =
patent
infringement cases.=20

63. 483 U.S. 203 (1987).=20

64. The same is most likely true with respect to patents and trademarks. =

65. In Seminole Tribe, the Court held that the plaintiff could not use =
Ex
parte Young to enforce the federal statute at issue. The statute =
contained
detailed remedial provisions and the Court found that permitting the
plaintiff to proceed under Ex parte Young would, in effect, create a
judicial remedy that Congress did not intend. Although this does not =
appear
directly applicable in the copyright context (the Copyright Act =
authorizes
injunctions against infringers), it could signal that the Court will =
take a
more restrictive view of Ex parte Young in future cases.=20

66. Vermont Agency of Nat. Resources v. Ex Rel. Stevens, 120 S. Ct. =
1858,
1870 (2000).=20

67. 108 U.S. 76 (1883).=20

68. 263 U.S. 365 (1923) .=20

69. 405 U.S. 251 (1972).=20

70. Id. at 258 n. 12 (citations omitted).

=20

=20

=20

Cameron Cox

Senior Director, Sales and Marketing

INTELECOM Intelligent Telecommunications

150 East Colorado Boulevard, Suite 300

Pasadena, CA 91105-1937

Toll free: (800) 576-2988

Outside the United States: (626) 796-7300

Fax: (626) 577-4282

Extension 112

=20

<http://www.intelecom.org/pdf/06_07_Catalog_Web.pdf>=20

=20

2006/2007 General Catalog

Core Curriculum Content

DVD * VHS * Digital Media * ITV

=20

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<div class=3DSection1>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial'>Statement
below dates to July 27, 2000 &#8230; as it applies to the discussion =
about
states rights, sovereign immunity (or eminent doman) and copyright =
owners. =A0<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial'>We came across
this after learning about a recent development involving an =
instructional video
and print series. =A0In recent months, a large state educational agency =
invoked sovereign
immunity to justify repackaging and distributing copyrighted workbooks =
tied to
an educational television series the state had licensed.=A0 The original =
content
of the workbooks was almost totally unchanged, and, therefore, would =
probably never
pass the various tests required to define a derivative =
product.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial'>Nevertheless,
because they are a state agency, so the state has allegedly argued, they =
can do
whatever they want with the workbooks; copyright law or no copyright =
law. =A0It remains
to be seen if the copyright owners will take action to cease further =
distribution
of their works or recover damages.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial'>Cameron Cox<br>
INTELECOM<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D2 face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial'>###<o:p></o:p></span></font>=
</p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D6 face=3D"Times New Roman"><span =
style=3D'font-size:24.0pt;font-weight:bold'>Statement
of Marybeth Peters<br>
The Register of Copyrights<br>
before the<br>
Subcommittee on Courts and Intellectual Property<br>
Committee on the Judiciary<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><st1:country=
-region
w:st=3D"on"><st1:place w:st=3D"on"><font size=3D3 face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt'>United =
States</span></font></st1:place></st1:country-region>
House of Representatives<br>
106<sup>th</sup> Congress, 2<sup>nd</sup> Session <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>July =
27, 2000<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D5 face=3D"Times New Roman"><span =
style=3D'font-size:18.0pt;font-weight:bold'>State
Sovereign Immunity and Protection of Intellectual Property =
<o:p></o:p></span></font></b></p>

<div class=3DMsoNormal align=3Dcenter style=3D'text-align:center'><font =
size=3D3
face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>

<hr size=3D2 width=3D"100%" align=3Dcenter>

</span></font></div>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Mr. =
Chairman,
Congressman Berman, Members of the Subcommittee, thank you for inviting =
me to
appear before the Subcommittee today. It is always a pleasure to testify =
before
this Subcommittee, and I appreciate the opportunity to present my views =
on the
important issues of state sovereign immunity from suits for infringement =
of
intellectual property rights.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>We =
can probably
all agree that when a State, or a State agency or an officer or employee =
of a
State acting in an official capacity, infringes a copyright or another =
federal
intellectual property right, the State should be held accountable for =
that
infringement just as any other person or entity would be. For most of =
our
history, it has been assumed that the States enjoyed no special immunity =
from
suits for infringement of intellectual property rights, but in the past =
fifteen
years those assumptions have been called into question as the Supreme =
Court has
breathed new life into the doctrine of sovereign immunity. Last year, =
the Court
held that provisions of the patent law and the Lanham Act permitting =
suits for
damages against States were unconstitutional, and the Court offered =
little
reason to hope that the analogous provision in the Copyright Act could =
be found
constitutional. This year a court of appeals held that the copyright law
provision is unconstitutional, and today we find ourselves in a =
situation where
States can infringe copyrights, patents, and trademarks with =
impunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Today =
I would like
to provide you with some background information to explain how we =
arrived at
the current unsatisfactory situation. I will then describe the current =
state of
the law. Finally, I will offer a preview of some of the alternatives =
Congress
may wish to consider if, as I believe it should, it decides to take =
action in
response to the recent decisions of the =
Court.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D5 face=3D"Times New Roman"><span =
style=3D'font-size:18.0pt;font-weight:bold'>I.
Background<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
doctrine of
sovereign immunity is an ancient legal principle, dating back to feudal =
<st1:place
w:st=3D"on">Europe</st1:place>, when power flowed from the King down =
through the
nobility and very little trickled down to the peasantry. It is rooted in =
the
premise that to submit to the jurisdiction of a court implies that one =
is
subservient or inferior to the power of that court. To understand this, =
one
must recall that in feudal times courts were not judicial bodies as we =
have
come to understand them in the <st1:country-region =
w:st=3D"on"><st1:place w:st=3D"on">United
States</st1:place></st1:country-region> today, but rather the courts =
of a
King or feudal Lord, often presided over by the King or Lord himself. =
Thus,
even a court of the King, which derived its authority from the King =
himself,
could not exercise any authority over the King unless the King should =
consent.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Because the
American model of government presumes the opposite of feudal structures, =
that
power flows up from the people to the States and to the Federal =
Government, the
application of sovereign immunity is far less intuitive. Indeed, the =
modern
application of this doctrine is controversial precisely because it is
fundamental to the relationship of the government to the people and of =
the
Federal Government to the States. It is the latter relationship which we =
are
considering today. The specific question raised by the topic of today's =
hearing
is: are States permitted (and if so, should they be permitted) to run =
afoul of
valid federal laws protecting intellectual property without subjecting
themselves to the monetary liability to which all others are =
vulnerable?<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In =
the <st1:country-region
w:st=3D"on"><st1:place w:st=3D"on">United =
States</st1:place></st1:country-region>,
state sovereign immunity is articulated by the Eleventh Amendment to the
Constitution.<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_1_"><sup>(1)</s=
up></a>
The Eleventh Amendment was adopted in 1795, but its true meaning remains =
a
subject of much discussion. Last year the Supreme Court breathed new =
life and
vitality into the doctrine of state sovereign immunity. In June of 1999, =
the
Supreme Court handed down a trio of rulings that, taken together, =
dramatically
altered the landscape of the enforceability of federal law with regard =
to
States.<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_2_"><sup>(2)</s=
up></a>
In order to fully appreciate the context of these rulings, it is =
necessary to
review the prior precedent and developments in the =
law.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
<st1:country-region
w:st=3D"on"><st1:place w:st=3D"on">United =
States</st1:place></st1:country-region>
passed its first Copyright Act in 1790. There is no decision in the =
ensuing 172
years that invoked sovereign immunity to exempt States from any of the =
remedies
available under the Copyright Act. Then, in 1962, the United States =
Court of
Appeals for the Eighth Circuit dismissed a copyright infringement suit =
against
a state agency on sovereign immunity grounds.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_3_"><sup>(3)</s=
up></a>
However, that case did not usher in a new era of sovereign =
immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Just =
two years
later, the Supreme Court issued its ruling in<i><span =
style=3D'font-style:italic'>
Parden v. Terminal Railway of Alabama</span></i> (<i><span =
style=3D'font-style:
italic'>Parden)</span></i>.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_4_"><sup>(4)</s=
up></a>
In that case, employees of a state-owned railroad sued the State of =
<st1:State
w:st=3D"on"><st1:place w:st=3D"on">Alabama</st1:place></st1:State> in =
federal court
under the Federal Employees' Liability Act (FELA). FELA specifically =
created a
cause of action in federal court against &quot;every common carrier by
railroad&quot; for damages suffered by employees from job-related =
personal
injuries.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In =
addressing <st1:State
w:st=3D"on"><st1:place w:st=3D"on">Alabama</st1:place></st1:State>'s =
sovereign
immunity defense, the Court engaged in a three-step analysis. First, the =
Court
discussed whether Congress intended to subject States to suit under =
FELA. The
Court reasoned that the express language of the statute created a cause =
of
action against &quot;every common carrier,&quot; and absent express =
language to
the contrary, a statutory exception for States should not be presumed. =
Thus,
the Court determined that Congress did intend to subject States to suit =
in
federal court under FELA.<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:
12.0pt'>Second, the Court considered whether Congress had the power to =
subject
a State to suit in federal courts notwithstanding the Eleventh =
Amendment. The
Court found that in giving Congress the power to regulate interstate =
commerce,
the States had surrendered any sovereign immunity that would impede that
regulation. Therefore, in acting under its Commerce Clause power, =
Congress
could abrogate state sovereign immunity. <o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Finally, the Court
queried whether <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Alabama</st1:place></st1:State>'s
operation of a railroad in interstate commerce after its waiver of =
sovereign
immunity implied that the State had consented to suit in federal court =
under
FELA. Finding that it did, the Court held that &quot;when a State leaves =
the
sphere that is exclusively its own and enters into activities subject to
congressional regulation, it subjects itself to that regulation as fully =
as if
it were a private person or corporation.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_5_"><sup>(5)</s=
up></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Because the
Copyright Act, in language very similar to FELA, provided for suit =
against
&quot;anyone&quot;<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_6_"><sup>(6)</s=
up></a>
who infringed a copyright, the decision in <i><span =
style=3D'font-style:italic'>Parden</span></i>
left little doubt that States could be sued for copyright =
infringement.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Over =
time the
decision in <i><span style=3D'font-style:italic'>Parden</span></i> was =
gradually
eroded. More than twenty years after <i><span =
style=3D'font-style:italic'>Parden</span></i>,
in <i><span style=3D'font-style:italic'>Atascadero State Hospital v. =
Scanlon</span></i>
(<st1:place w:st=3D"on"><i><span =
style=3D'font-style:italic'>Atascadero</span></i></st1:place>),<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_7_"><sup>(7)</s=
up></a>
the Court reversed itself on the legislative requirements necessary to =
find
congressional intent to abrogate state sovereign immunity. In that case, =
a
disabled person sued a state hospital in federal court for alleged =
employment
discrimination. The suit was brought pursuant to the Rehabilitation Act =
of
1973, a statute which the Court assumed had been enacted under the =
authority of
Section 5 of the Fourteenth Amendment. The statute provided for remedies
against &quot;any recipient of Federal assistance,&quot; a class that =
arguably
included States.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court
recognized Congress' power to abrogate a State's immunity in =
circumstances in
which &quot;the usual constitutional balance between the States and the =
Federal
Government does not obtain.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_8_"><sup>(8)</s=
up></a>
The Court went on to hold that in the instant case, the Eleventh =
Amendment
barred recovery from the States because a &quot;general authorization =
for suit
in federal court is not the kind of unequivocal language sufficient to =
abrogate
the Eleventh Amendment.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_9_"><sup>(9)</s=
up></a>
Rather, what is required for congressional abrogation of state sovereign
immunity is that the federal statute be &quot;unmistakably clear&quot; =
that
States are included in the defendant class.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Under =
this more
stringent test, the language of many statutes that had been assumed to =
abrogate
sovereign immunity, including the Copyright Act, the Patent Act, and the =
Lanham
Act, failed to achieve that purpose. Thus, there was reason to believe =
that
States might be immune to suits for damages under the Copyright Act and =
the
other federal intellectual property laws..<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Supreme Court
issued another significant ruling in 1989 in <i><span =
style=3D'font-style:italic'>Pennsylvania
v. Union Gas Co. </span></i>(<i><span style=3D'font-style:italic'>Union =
Gas</span></i>)<i><span
style=3D'font-style:italic'>.</span></i><a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_10_"><sup>(10)<=
/sup></a>
That case involved a suit by a private company against the State for
third-party liability under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) to recover certain =
costs to
clean a spill of coal tar into a creek.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court
considered two questions. First, did CERCLA clearly abrogate state =
sovereign
immunity? The Act provided for the liability of &quot;persons&quot; and
included within its definition of that term, &quot;States.&quot; This
provision, along with the presence in the Act of language excepting =
States from
liability in particular circumstances, satisfied the Court that the law =
was unmistakably
clear in its intent to make States liable in all but the excepted =
instances.
Thus, the Court quickly concluded that CERCLA did properly purport to =
abrogate
state sovereign immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:
12.0pt'>The second question the Court considered was whether Congress =
had
authority to enact such an abrogation. CERCLA was enacted pursuant to =
Congress'
Article I, Section 8 authority, specifically, the Commerce Clause. A =
plurality
of the Court found that &quot;to the extent that the States gave =
Congress the
authority to regulate commerce, they also relinquished their immunity =
where
Congress found it necessary, in exercising this authority, to render =
them
liable.&quot;<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_11_"><sup>(11)<=
/sup></a>
<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>This =
ruling
strengthened the hand of copyright owners. However, the uncertainty =
arising
from the <st1:place w:st=3D"on"><i><span =
style=3D'font-style:italic'>Atascadero</span></i></st1:place>
decision remained.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>As a =
result of
that uncertainty, Congress acted.<b><span style=3D'font-weight:bold'> =
</span></b>In
1990 Congress enacted the descriptively-named Copyright Remedy =
Clarification
Act (CRCA).<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_12_"><sup>(12)<=
/sup></a>
That law added to Title 17 provisions which state in clear terms that =
remedies
for infringement are available against States, and that States =
&quot;shall not
be immune, under the Eleventh Amendment of the Constitution . . . or any =
other
doctrine of sovereign immunity, from suit in Federal Court . . . for a
violation of the exclusive rights of a copyright owner . . . .&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_13_"><sup>(13)<=
/sup></a>
These clear statements left little doubt that Congress intended to make =
States
liable for infringement and to abrogate their sovereign immunity. Thus, =
once
again, the apparent uncertainty about the immunity of States from suits =
for
damages for copyright infringement was =
removed.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>A =
substantial
portion of the legislative history of the CRCA, which would later become
critical, was a June, 1988 report produced by the Copyright Office =
entitled
&quot;Copyright Liability of States and the Eleventh Amendment.&quot; =
That
report surveyed the legal history of the Eleventh Amendment and applied
contemporary Supreme Court jurisprudence to copyright infringement suits
against States. As part of that application, the report cited several =
instances
of alleged copyright infringement by States that had been brought to the
Office's attention. Additionally, a Congressional Research Service =
survey of
waivers of sovereign immunity by States and the extent of those waivers =
was
appended to the Copyright Office report.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Congress followed
the CRCA in 1992 with the Trademark Remedy Clarification Act<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_14_"><sup>(14)<=
/sup></a>
(TRCA) and the Patent and Plant Variety Remedy Clarification Act<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_15_"><sup>(15)<=
/sup></a>
(PRCA). These acts were nearly identical to the CRCA. Taken together, =
the three
acts appeared to settle the issue of state liability for infringement of
intellectual property.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
series of
positive developments for intellectual property owners ended with the =
enactment
of the TRCA and the PRCA. What followed was a series of highly =
controversial
decisions, almost all by a highly charged 5-4 =
vote.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Four =
years after
the TRCA and PRCA were enacted, the Court handed down its ruling in =
<i><span
style=3D'font-style:italic'>Seminole Tribe of Florida v. =
Florida</span></i> (<i><span
style=3D'font-style:italic'>Seminole Tribe</span></i>).<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_16_"><sup>(16)<=
/sup></a>
That case involved a suit by an Indian tribe under the Indian Gaming =
Regulatory
Act to compel the State of <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Florida</st1:place></st1:State>
to engage in good faith negotiations with the Tribe. The Act was adopted
pursuant to Congress' Article I, Section&nbsp;8 authority: the Indian =
Commerce
Clause.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court
considered the same two issues it had considered in <i><span =
style=3D'font-style:
italic'>Union Gas</span></i>. The first was whether Congress has
&quot;unequivocally expresse[d] its intent to abrogate [state] =
immunity.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_17_"><sup>(17)<=
/sup></a>
The Act left little room for discussion. It instructed that district =
courts
would have jurisdiction to hear cases arising from the failure of a =
State to
engage in good faith negotiations. Obviously, only States could be =
defendants
in such actions and therefore Congress, in enacting this provision, =
clearly
intended the States' immunity to be abrogated. The Court reached this =
conclusion
quickly.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
second issue
was whether Congress had authority to enact such an abrogation. At the =
outset
of its analysis, the Court noted that &quot;we have found authority to =
abrogate
under only two provisions of the Constitution . . . the Fourteenth =
Amendment .
. . [and] the Interstate Commerce Clause . . . .&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_18_"><sup>(18)<=
/sup></a>
Because the Act being reviewed was adopted pursuant to Article I =
authority, the
<i><span style=3D'font-style:italic'>Union Gas</span></i> decision was =
strong
support for the constitutionality of the Act in this case. However, by a =
5-4
vote the Court reversed itself and overruled <i><span =
style=3D'font-style:italic'>Union
Gas</span></i>, finding that &quot;the background principle of state =
sovereign
immunity embodied in the Eleventh Amendment is not so ephemeral as to =
dissipate
when the subject of the suit is an area, like the regulation of Indian
commerce, that is under the exclusive control of the Federal =
Government.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_19_"><sup>(19)<=
/sup></a><b><span
style=3D'font-weight:bold'> </span></b>Thus, after <i><span =
style=3D'font-style:
italic'>Seminole Tribe</span></i>, Congress had only its authority under
Section 5 of the Fourteenth Amendment as a valid source of power to =
abrogate
state sovereign immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>This =
ruling cast a
shadow on the constitutionality of the CRCA, PRCA and TRCA. Those laws =
were
most intuitively exercises of Congress' Article I power. Now, in order =
to
sustain the CRCA, PRCA and TRCA, it was necessary to find sufficient =
authority
in the Fourteenth Amendment, which subjected those laws to a much higher =
level
of scrutiny. In his dissent in <i><span =
style=3D'font-style:italic'>Seminole Tribe</span></i>,
Justice Stevens noted the potential for the Court's decision to disrupt
numerous fields of federal law because &quot;it prevents Congress from
providing a federal forum for a broad range of actions against States, =
from
those sounding in copyright and patent law, to those concerning =
bankruptcy,
environmental law, and the regulation of our vast national =
economy.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_20_"><sup>(20)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Supreme Court
turned to the scope of Congress' Fourteenth Amendment authority the =
following
year in <i><span style=3D'font-style:italic'>City of Boerne v. =
Flores</span></i>
(<i><span style=3D'font-style:italic'>City of Boerne</span></i>).<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_21_"><sup>(21)<=
/sup></a>
In that case, the Supreme Court was faced with the constitutionality of =
the
Religious Freedom Restoration Act (RFRA), which Congress had enacted to
overrule a previous Court decision and apply the strict scrutiny test to =
State
and local laws of general applicability that had an incidental effect on =
the
free exercise of religion. RFRA had been enacted pursuant to Congress' =
power
under Section 5 of the Fourteenth Amendment. The case was brought under =
RFRA by
a Roman Catholic Archbishop to contest the denial of a permit to expand =
a
church building by the Historic Landmark Commission of the city of =
<st1:City
w:st=3D"on"><st1:place =
w:st=3D"on">Boerne</st1:place></st1:City>.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
issue before
the Court was whether RFRA was a valid exercise of Congress' Fourteenth
Amendment authority. By a vote of 6-3, the Court found that it was not =
because
it read RFRA as seeking to alter the substantive meaning of the =
Fourteenth
Amendment and the Free Exercise Clause of the First =
Amendment.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
design of the
Amendment and the text of =A7&nbsp;5 are inconsistent with the =
suggestion that
Congress has the power to decree the substance of the Fourteenth =
Amendment's
restrictions on the States. Legislation which alters the meaning of the =
Free
Exercise Clause cannot be said to be enforcing the Clause. Congress does =
not
enforce a constitutional right by changing what the right is. It has =
been given
the power &quot;to enforce,&quot; not the power to determine what =
constitutes a
constitutional violation.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_22_"><sup>(22)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court went on
to expound upon what standards Congress must adhere in order to remain =
within
the bounds of its Fourteenth Amendment power. The key to this analysis =
is that
&quot;[t]here must be a congruence and proportionality between the =
injury to be
prevented or remedied and the means adopted to that end.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_23_"><sup>(23)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>While =
this was not
a sovereign immunity case, it is crucial to sovereign immunity analysis
because, after <i><span style=3D'font-style:italic'>Seminole =
Tribe</span></i>,
Congress may abrogate state sovereign immunity only pursuant to the =
Fourteenth
Amendment. Thus, this case set the stage for the courts to review the
constitutionality of the CRCA and parallel legislation concerning =
patents and
trademarks.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>That =
brings us to
the Supreme Court's triad of opinions on June 23, 1999. It is worth =
noting that
all three of these cases were decided by the same 5-4 vote and all three
engendered strong dissenting views. The decision in <i><span =
style=3D'font-style:
italic'>Alden v. Maine</span></i> (<i><span =
style=3D'font-style:italic'>Alden</span></i>)<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_24_"><sup>(24)<=
/sup></a>
undergirded the other two decisions. In that case, John Alden and other
employees of the State of <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Maine</st1:place></st1:State>
filed suit in federal court against that state for violation of the =
overtime
provisions of the Fair Labor Standards Act, a federal law. In light of =
the
Supreme Court's decision in <i><span =
style=3D'font-style:italic'>Seminole Tribe</span></i>,
the District Court dismissed the action. The dismissal was upheld by the =
Court
of Appeals.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Petitioners then
filed the same action in state court in <st1:State =
w:st=3D"on"><st1:place w:st=3D"on">Maine</st1:place></st1:State>.
The state trial court dismissed the suit on grounds of sovereign =
immunity and
the <st1:Street w:st=3D"on"><st1:address w:st=3D"on">Maine Supreme =
Judicial Court</st1:address></st1:Street>
affirmed. The United States Supreme Court also =
affirmed.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court's
holding in this case went well beyond the routine recognition that a =
State is a
sovereign entity that maintains an immunity to lawsuits by private =
parties to
which it has not consented. The Court's holding is important because of =
the
broad applicability of state sovereign immunity to the State's own =
courts as
well as to the federal courts.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Specifically, the
Court reasoned that the Eleventh Amendment was not the origin of state
sovereign immunity. Rather,<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>the =
States'
immunity from suit [in the State's own courts and in federal courts] is =
a
fundamental aspect of the sovereignty which the States enjoyed before =
the
ratification of the Constitution, and which they retain today . . . =
except as
altered by the plan of the Convention or certain constitutional =
Amendments.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_25_"><sup>(25)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In =
this view,
then,<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>[t]he =
Eleventh
Amendment confirmed rather than established sovereign immunity as a
constitutional principle; it follows that the scope of the States' =
immunity
from suit is demarcated not by the text of the Amendment alone but by
fundamental postulates implicit in the constitutional design.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_26_"><sup>(26)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court's
conclusion that Congress can abrogate a state's sovereign immunity only =
in
narrow circumstances owes it origins to this view. &quot;Although the =
sovereign
immunity of the States derives at least in part from the common-law =
tradition,
the structure and history of the Constitution make clear that the =
immunity
exists today by <b><span =
style=3D'font-weight:bold'>constitutional</span></b>
design.&quot;<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_27_"><sup>(27)<=
/sup></a>
The Court continued that:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>[t]he =
federal
system established by our Constitution preserves the sovereign status of =
the
States in two ways. First, it reserves to them [through the Tenth =
Amendment] a
substantial portion of the Nation's primary sovereignty, together with =
the
dignity and essential attributes inhering in that status . . . . Second, =
even
as to matters within the competence of the National Government, the
constitutional design secures the founding generation's rejection of =
&quot;the
concept of a central government that would act upon and through the
States&quot; in favor of &quot;a system in which the State and Federal
Governments would exercise concurrent authority over the people--who =
were, in
Hamilton's words, the only proper objects of government.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_28_"><sup>(28)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>A =
preponderance of
the opinion of the Court purports to demonstrate, through numerous =
references,
the historical accuracy of its view of the origins of state sovereignty.
Interestingly, the Court did not extend respect for a State's sovereign
immunity into the realm of another State's courts.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_29_"><sup>(29)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court
concluded its opinion with an implicit recognition of the potential for =
states
to profit unfairly from its ruling. Thus, the Court noted several limits =
on its
holding. First, states may waive their immunity and Congress may provide
incentives for such waiver, as provided in <i><span =
style=3D'font-style:italic'>South
Dakota v. Dole</span></i> (483 U.S. 203 (1987) .<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_30_"><sup>(30)<=
/sup></a>
Second, the immunity &quot;bars suits against States, but not lesser =
entities.
The immunity does not extend to suits prosecuted against a municipal
corporation or other governmental entity which is not an arm of the
State.&quot;<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_31_"><sup>(31)<=
/sup></a>
Additionally, injunctive and declaratory relief are not precluded by =
state
immunity.<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_32_"><sup>(32)<=
/sup></a>
Clearly, this leaves the States with a tremendous opportunity to evade =
federal
law. The Court provided cold comfort in its declaration that &quot;[w]e =
are
unwilling to assume the States will refuse to honor the Constitution or =
obey
the binding laws of the <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">United
States</st1:place></st1:country-region>.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_33_"><sup>(33)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In =
the second of
the June 23 cases, the Court applied the principles of its recent =
decisions to
the TRCA in <i><span style=3D'font-style:italic'>College Savings Bank v. =
Florida
Prepaid Postsecondary Educ. Expense Bd</span></i> (<i><span =
style=3D'font-style:
italic'>College Savings</span></i>).<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_34_"><sup>(34)<=
/sup></a>
In that case, College Savings Bank sued the State of <st1:State =
w:st=3D"on"><st1:place
w:st=3D"on">Florida</st1:place></st1:State> for false advertising in =
federal
court under section&nbsp;43(a) of the Lanham Act. In light of the =
Supreme
Court's decision in <i><span style=3D'font-style:italic'>Seminole =
Tribe</span></i>,
the District Court granted <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Florida</st1:place></st1:State>'s
motion to dismiss on sovereign immunity grounds. The Third Circuit =
affirmed.
The Supreme Court also affirmed.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court
considered two avenues through which College Savings' claim could =
survive state
immunity. First, that Congress had abrogated state immunity through =
enactment
of the TRCA. Second, that by participating in the scheme of the Lanham =
Act,
States have waived their immunity by implication.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_35_"><sup>(35)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court first
turned to the question of whether the TRCA abrogated state sovereign =
immunity.
As I have already outlined, current Supreme Court precedent admits only =
one
source of constitutional authority from which Congress may abrogate =
state immunity:
the enforcement power in Section 5 of the Fourteenth Amendment.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_36_"><sup>(36)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Fourteenth
Amendment instructs in relevant part that &quot;No State shall . . . =
deprive
any person of . . . property, without due process of law.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_37_"><sup>(37)<=
/sup></a>
Because the Court held that College Savings did not allege deprivation =
of a
property right within the meaning of the Fourteenth Amendment, the =
avenue of
congressional abrogation of state immunity was closed.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_38_"><sup>(38)<=
/sup></a>
The Court did not hold that trademarks are not property. Just the =
opposite, in
fact:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Lanham Act may
well contain provisions that protect consti-tutionally cognizable =
property
interests--notably, its provisions dealing with infringement of =
trademarks,
which are the &quot;property&quot; of the owner because he can exclude =
others
from using them.<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_39_"><sup>(39)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>However, the Court
recognized that College Savings was not suing for trademark =
infringement, but
for misrepresentation. The right to be free from misrepresentation is =
not, the
Court held, a property right within the meaning of the Fourteenth =
Amendment.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_40_"><sup>(40)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Next, =
the Court
turned to the question of implied state waiver of immunity. Invoking the
precedent of <i><span style=3D'font-style:italic'>Parden</span></i>, =
College
Savings sought to show that <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Florida</st1:place></st1:State>
had impliedly waived its immunity by participating in a scheme that is
enforceable in federal court.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_41_"><sup>(41)<=
/sup></a>
Not only did the Court reject this argument, but it overruled <i><span
style=3D'font-style:italic'>Parden</span></i> and renounced the doctrine =
of
implied waiver of state immunity.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_42_"><sup>(42)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
Court's
holding requires that a state's waiver be explicit and voluntary in =
order to be
effective. However, Congress may provide incentives to the state by
conditioning use of its discretionary authority such as that found in =
the
Spending Clause and the Compact Clause on state waiver.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_43_"><sup>(43)<=
/sup></a>
Nonetheless, the Court apparently disapproves of the use of at least =
some
Commerce Clause authority in this manner:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In =
the present
case, however, what Congress threatens if the State refuses to agree to =
its
condition is not the denial of a gift or gratuity, but a sanction: =
exclusion of
the State from otherwise permissible activity . . . . [W]e think where =
the
constitutionally guaranteed protection of the States' sovereign immunity =
is
involved, the point of coercion is automatically passed--and the =
voluntariness
of waiver destroyed--when what is attached to the refusal to waive is =
the
exclusion of the State from otherwise lawful activity.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_44_"><sup>(44)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>In a =
companion
case, the third of the three opinions issued on June 23, <i><span
style=3D'font-style:italic'>Florida Prepaid Postsecondary Educ. Expense =
Bd. v.
College Savings Bank</span></i>, (<i><span =
style=3D'font-style:italic'>Florida
Prepaid</span></i>),<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_45_"><sup>(45)<=
/sup></a>
College Savings Bank sued the State of Florida in federal court, =
claiming
patent infringement. Despite the Supreme Court's ruling in <i><span
style=3D'font-style:italic'>Seminole Tribe</span></i>, the District =
Court denied
Florida Prepaid's motion to dismiss. The District Court held that =
Congress had
abrogated the State's immunity in this case by virtue of the PRCA.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_46_"><sup>(46)<=
/sup></a>
The Federal Circuit affirmed. The Supreme Court =
reversed.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
question
presented was whether Congress' attempt to abrogate state sovereign =
immunity
was valid. The Court considered this question under the two-part test
articulated in <i><span style=3D'font-style:italic'>Seminole =
Tribe</span></i>:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>first, whether
Congress has &quot;unequivocally expresse[d] its intent to abrogate the
immunity,&quot;...and second, whether Congress has acted &quot;pursuant =
to a
valid exercise of power.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_47_"><sup>(47)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
first part of
the test was met easily, as the statute was very clear on the point. The =
second
part of the test, however, was not met to the Court's =
satisfaction.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>As =
noted above,
current Supreme Court precedent admits only one source of constitutional
authority from which Congress may abrogate state immunity: the =
enforcement
power in Section 5 of the Fourteenth Amendment. It was on this basis =
that
College Savings Bank sought to have the statute upheld. The Court =
acknowledged
that patents are property within the meaning of the Fourteenth =
Amendment.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_48_"><sup>(48)<=
/sup></a>
Thus, the Fourteenth Amendment's provision that &quot;No State shall . . =
.
deprive any person of . . . property, without due process of law&quot; =
was
potentially applicable to patent infringement. However, the Court held =
that the
legislative enactment at issue in this case did not fall within =
Congress'
Fourteenth Amendment power for several =
reasons.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>First, as the
Court held in <i><span style=3D'font-style:italic'>City of =
Boerne</span></i>,
Congress &quot;must identify conduct transgressing the Fourteenth =
Amendment's
substantive provisions, and must tailor its legislative scheme to =
remedying or
preventing such conduct.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_49_"><sup>(49)<=
/sup></a>
The Court found that Congress failed to meet this burden because it did =
not
identify a pattern of patent infringement by states.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_50_"><sup>(50)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Second, the Court
recognized that patent infringement by a state is not a violation of the
Fourteenth Amendment if the state provides a remedy, that is, due =
process.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_51_"><sup>(51)<=
/sup></a>
Because the statute was drafted to apply to all states, without regard =
to
state-provided remedies, the Court held that it went beyond the power =
conveyed
by the Fourteenth Amendment.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_52_"><sup>(52)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Third, the Court
noted that &quot;a state actor's negligent act that causes unintended =
injury to
a person's property does not 'deprive' that person of property within =
the
meaning of the Due Process Clause.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_53_"><sup>(53)<=
/sup></a>
Because a claim for patent infringement requires no showing of intent in =
order
for the plaintiff to prevail, the Court held that the legislative =
enactment at
issue in this case was again overbroad.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_54_"><sup>(54)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>This =
decision
applied the general rule articulated in <i><span =
style=3D'font-style:italic'>City
of <st1:City w:st=3D"on"><st1:place =
w:st=3D"on">Boerne</st1:place></st1:City>,</span></i>
and the high barriers erected by that application spelled almost certain =
doom
for the CRCA, which is closely analogous to the PRCA that the Court =
struck down
in <i><span style=3D'font-style:italic'>Florida Prepaid</span></i>. =
However, a
glimmer of hope for CRCA's survival was provided by Justice Stevens' =
dissent.
In acknowledging that the legislative history of the PRCA did not meet =
the
Court's newly articulated standards, Justice Stevens noted =
that:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
legislative
history of [the CRCA] includes many examples of copyright infringement =
by
States . . . Perhaps most importantly, the House requested that the =
Register of
Copyrights prepare a study, which he [sic] described in his transmittal =
letter
as, &quot;a factual inquiry about enforcement of copyright against state
governments .&nbsp;.&nbsp;. This report contains comments from industry =
groups,
statistics, and legal analysis relating to copyright violations, actual =
and
potential, by States.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_55_"><sup>(55)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Although the
Supreme Court has not ruled directly on the constitutionality of the =
CRCA, the
Fifth Circuit applied the Supreme Court's recent rulings early this year =
in <i><span
style=3D'font-style:italic'>Chavez v. Arte Publico Press</span></i> =
(<i><span
style=3D'font-style:italic'>Chavez</span></i>).<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_56_"><sup>(56)<=
/sup></a>
That case involved a suit by an author claiming copyright infringement =
of her
book by the <st1:place w:st=3D"on"><st1:PlaceType =
w:st=3D"on">University</st1:PlaceType>
of <st1:PlaceName w:st=3D"on">Houston</st1:PlaceName></st1:place>, a =
state
university.<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:
12.0pt'>The court followed the analysis in <i><span =
style=3D'font-style:italic'>Florida
Prepaid</span></i>, first inquiring whether Congress identified a =
pattern of
infringement by States. While noting that the legislative history in =
support of
the CRCA, which included the report of the Copyright Office, was =
somewhat more
substantial than that of the PRCA, the court found that the record was =
still
inadequate to support the legislative enactment. Second, the court noted =
that
in adopting the CRCA, Congress &quot;barely considered the availability =
of state
remedies for infringement.&quot;<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_57_"><sup>(57)<=
/sup></a>
That the legislative history did not meet requirements the Court =
articulated a
decade after the law was enacted is not surprising. Thus, the Fifth =
Circuit
refused to enforce the CRCA. <o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
same result
was reached in another Fifth Circuit case, <i><span =
style=3D'font-style:italic'>Rodriguez
v. Texas Comm'n on the Arts</span></i>,<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_58_"><sup>(58)<=
/sup></a>
in a brief opinion that presumably is based upon the same rationale as =
that
circuit's decision in <i><span =
style=3D'font-style:italic'>Chavez</span></i>.
Given the current Supreme Court precedent, it is difficult to find fault =
with
the ruling in <i><span style=3D'font-style:italic'>Chavez</span></i>, =
and we
believe that the CRCA most likely is now bad =
law.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D5 face=3D"Times New Roman"><span =
style=3D'font-size:18.0pt;font-weight:bold'>II.
The Current Situation<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Copyright owners
have but one arrow left in their quiver to prevent or deter infringement =
of
their intellectual property rights by States. That arrow is injunctive =
relief
against particular employees of the State. Although the doctrine of =
state
sovereign immunity has been dramatically strengthened in recent years, =
the
Court has thus far retained the injunctive relief available under the =
reasoning
of a 1908 case, <i><span style=3D'font-style:italic'>Ex parte =
Young</span></i>.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_59_"><sup>(59)<=
/sup></a>
The reasoning behind this rule is that when a state official acts in =
violation
of valid federal law, that official is by definition acting outside the =
scope
of his official duties because a State clearly cannot lawfully authorize =
one of
its employees to act in violation of valid federal law. And, an employee =
of a
State is cloaked with the State's immunity only when acting within the =
scope of
his duties. Therefore, an employee of a State who acts in violation of a =
valid
federal law is not immune and may be enjoined from that =
activity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
<i><span
style=3D'font-style:italic'>Ex parte Young</span></i> doctrine provides =
only
limited relief, however, because it provides no compensation for the =
damages
already inflicted upon a copyright owner due to past infringement by a =
State.
Moreover, given the Court's movement in recent years, one might question
whether this doctrine will remain in force.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
practical
question that is begged by the legal analysis is: are the States taking
advantage of their immunity to infringe copyrights? Given the legal =
structure
that the Supreme Court has erected, one might very well expect the =
answer to be
in the affirmative. And it may very well be so. Unfortunately, the =
extent of
State infringements is largely unknown at this time, only a year after =
the
decisions in <i><span style=3D'font-style:italic'>Florida =
Prepaid</span></i>, <i><span
style=3D'font-style:italic'>College Savings</span></i> and <i><span
style=3D'font-style:italic'>Alden</span></i>. Information on =
infringements by
States has not traditionally been collected, nor is it conveniently =
available
from a single or few sources. Merely reviewing dismissed court cases =
would
overlook a potentially large number of cases never brought because =
potential
plaintiffs see such a suit as futile in the face of the Court's rulings. =
The
question may only be answered, if at all, by a comprehensive study, and =
even
then there is a substantial possibility that numerous complaints that =
were never
brought to court are virtually impossible to find. In effect, it may be
logistically impossible to satisfy the Court's demands for legislative =
findings
to support abrogation of state sovereign immunity. What appears certain =
is that
so long as States remain immune from suits for damages from =
infringements of
copyrights and other intellectual property rights, States are likely to =
be
tempted to infringe and the number of actual infringements by States is =
likely
to increase.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Another subject
for which a study would be necessary to ascertain the scope of the =
problem is
the availability of alternative state remedies that would satisfy due =
process.
This information is significantly easier to obtain than alleged =
infringements
because, of course, state law is readily available to innumerable =
researchers
throughout the country. It is our presumption that such measures are =
largely
unavailable. We believe this for several reasons. First, based on the =
CRS
report appended to the 1988 Copyright Office study &quot;Copyright =
Liability of
States and the Eleventh Amendment,&quot; few States appeared to have =
waived
their immunity for copyright infringement suits in federal court. =
Moreover,
copyright infringement suits may be heard only in federal court, so even =
if a
State has waived immunity in its own courts, they would not offer a =
proper
forum in which the infringement claim could be brought. Finally, State =
remedies
are largely preempted by the Copyright Act. Nonetheless it remains an =
open
question whether the Court would find that a substitute state remedy, =
such as
an action for the uncompensated taking of private property or an action =
in
tort, would not run afoul of preemption and also would satisfy the =
Fourteenth
Amendment's requirement of due process.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>We do =
have some
sense of the extent to which States make use of the Copyright Office's
registration function. The Copyright Office reviewed the registrations =
issued
to four-year state colleges and universities for monographs<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_60_"><sup>(60)<=
/sup></a>
since 1978. Over 32,000 such registrations were found. That is an =
average of
645 registrations for each State. Put differently, on average the =
Copyright
Office has issued a registration for a work by a State (not including =
State
entities other than four-year colleges and universities, and not =
including
serials) once every twelve calendar days for the last twenty-two years.
Clearly, States are availing themselves of the copyright protection =
provided by
federal law.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D5 face=3D"Times New Roman"><span =
style=3D'font-size:18.0pt;font-weight:bold'>III.
Possible Solutions<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Although the
purpose of this oversight hearing is to explore the nature of the =
problem
rather than to consider legislation to remedy the problem, it is =
important that
this Subcommittee understand what alternatives Congress will have when, =
as I
hope it will do, it decides to redress the imbalance created by the =
recent
decisions of the Supreme Court in this area. Let me make it clear that I
believe Congress should act. I recognize that the legislative calendar =
makes
such action highly unlikely this year, and I also understand that many =
parties
crucially interested in this issue believe that further study is =
required
before an effective legislative response can be identified. An effective
solution may be difficult to reach in light of the constraints placed =
upon
Congress by the current majority on the Supreme =
Court.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>But =
legislation
should be considered in the next Congress, and I hope that this hearing =
serves
as a valuable first step in that process. Although the Supreme Court has
created formidable constitutional impediments to abrogation of States'
sovereign immunity, neither the Court nor, I believe, anybody else has =
asserted
that States should not be held accountable when they infringe =
copyrights,
patents or trademarks. As I have already mentioned, States take =
advantage of
the copyright laws by owning valuable copyrights, as reflected in their
registration practice. I believe the same is true with respect to =
patents and
trademarks. Why should States be able to enjoy the benefits of federal
intellectual property protection if they are not subject to the same =
burdens
that govern other participants in the federal intellectual property =
system? And
even if a State were to decide not to take advantage of copyright, =
patent and
trademark law, should not a State be held responsible for the harm it =
causes to
a copyright owner--or to a patent or trademark owner--when it becomes an
infringer?<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Several months
before the Court handed down its opinions in <i><span =
style=3D'font-style:italic'>Florida
Prepaid</span></i>, <i><span style=3D'font-style:italic'>College =
Savings</span></i>
and <i><span style=3D'font-style:italic'>Alden</span></i>, the Copyright =
Office
(anticipating unfavorable outcomes) began to investigate the options for
legislative responses to holdings invalidating the abrogation of =
sovereign
immunity. After the Court ruled, several Members of Congress, including =
the
Chairman of this Subcommittee, asked that we suggest legislative =
approaches to
this problem. In doing so we were guided by two equally important =
principles:
constitutionality and effectiveness. A proposal that fails either of =
these
criteria is of little value.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>One =
option that
was considered was to<b><span style=3D'font-weight:bold'> =
</span></b>amend 28
U.S.C. =A7&nbsp;1338(a) to permit suits against States in state courts. =
The
Supreme Court's decision in <i><span =
style=3D'font-style:italic'>Alden,</span></i>
that state immunity in state courts is equal to state immunity in =
federal
courts, virtually eliminates the effectiveness of this option. States =
still
have the ability to block the courthouse door to copyright owners. =
Permitting
suit in state courts would be an improvement only to the extent States =
have
waived their immunity in their own courts.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_61_"><sup>(61)<=
/sup></a>
It is not known how many (if any) States fall into that category. =
Further,
those that do could simply revoke that waiver and defeat this =
maneuver.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>There =
are also
certain drawbacks to this approach, even if it were effective. The =
current
exclusive federal jurisdiction to hear copyright cases under 28 U.S.C.
=A7&nbsp;1338 reflects a congressional determination that the copyright =
system
would function more effectively if relatively uniform decisions could be
achieved. If state courts are permitted to hear copyright cases, the =
potential
would exist for at least 50 different interpretations of the same =
federal
statutory provision. Although the final decision rendered in the state =
court
system would be reviewable by the U.S. Supreme Court, the Court would =
only be
able to take a very small fraction of the cases in order to resolve =
conflicting
interpretations.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Additionally,
state court judges at all levels have virtually no experience with the
copyright law. Even if state courts were given jurisdiction to hear =
copyright
cases against the States, the volume of cases could be expected to be =
fairly
low, affording state court judges little opportunity to gain =
experience.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_62_"><sup>(62)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Another option we
considered is to condition States' receipt of certain federal funds on a =
waiver
of immunity for infringement suits. The leading case for determining the
validity of such an enactment is <i><span =
style=3D'font-style:italic'>South
Dakota v. Dole</span></i>.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_63_"><sup>(63)<=
/sup></a>
That case set forth a four-part test:<o:p></o:p></span></font></p>

<ul type=3Ddisc>
<li class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
mso-list:l0 level1 lfo1'><font size=3D3 face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt'>The exercise of the spending power must =
be in
pursuit of the general welfare;<o:p></o:p></span></font></li>
<li class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
mso-list:l0 level1 lfo1'><font size=3D3 face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt'>The condition must be unambiguous, =
enabling the
States to exercise their choice =
knowingly;<o:p></o:p></span></font></li>
<li class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
mso-list:l0 level1 lfo1'><font size=3D3 face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt'>The conditioned spending must be related =
to the
Federal project or program; and<o:p></o:p></span></font></li>
<li class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
mso-list:l0 level1 lfo1'><font size=3D3 face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt'>The condition must not be barred by =
other
constitutional provisions.<o:p></o:p></span></font></li>
</ul>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>The =
first two
conditions are satisfied easily. The third is not easily satisfied. =
Unlike
driving and highway funds, copyrights do not easily relate to federal =
spending.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_64_"><sup>(64)<=
/sup></a>
Some have suggested tying waiver of immunity to federal spending on =
higher
education, but this would be politically unpopular, and I would not =
support
legislative action that would penalize our colleges and universities by
withholding needed funds simply because state legislatures are unwilling =
to
waive their sovereign immunity. We have not found any case law regarding
spending-conditioned waiver of state sovereign immunity, but the Court's
decisions in both <i><span style=3D'font-style:italic'>Alden</span></i> =
and <i><span
style=3D'font-style:italic'>College Savings</span></i> explicitly refer =
to the
spending power as a legitimate means of inducing voluntary State waiver.
However, if the Court finds the amount of money conditioned to be so =
great as
to become coercive, it may strike down the condition. There is little or =
no
guidance on what qualifies as coercive in the case law. One legislative
drawback of this option is that it might require re-enactment in =
appropriations
legislation every year.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>A =
third option is
to empower a federal agency to bring actions against States for =
violating
copyright rights of private parties. State sovereign immunity does not =
extend
to suits brought by the <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">United
States</st1:place></st1:country-region>. Thus, federal agencies could, =
at
least theoretically, be used to circumvent that =
immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>There =
are numerous
problems with this approach. First, any agency charged with enforcing
copyrights against States would probably require significant resources =
to
conduct such actions. During a period when Congress places great =
emphasis on
fiscal discipline, it seems unlikely that such an agency would be =
adequately
staffed and funded.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Second, under the
doctrine of <i><span style=3D'font-style:italic'>Ex Parte =
Young</span></i>, a
private litigant can bring an action against a state officer to obtain
prospective injunctive relief against continuing violations of federal =
law.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_65_"><sup>(65)<=
/sup></a>
In the copyright context that means that an individual can stop a =
continuing
infringement by a State, but has no remedy for the State's past =
infringements.
Unless a structure can be devised whereby the federal agency can obtain =
damages
for past infringements and turn them over to copyright owners, it is =
difficult
to see any advantage to enforcement by a federal agency that cannot =
already be
obtained under <i><span style=3D'font-style:italic'>Ex Parte =
Young</span></i>.
Such a structure might have been available in the form of a <i><span
style=3D'font-style:italic'>qui tam</span></i> suit, where an individual =
is
authorized to pursue a right of action of the Federal Government. =
However, the
use of <i><span style=3D'font-style:italic'>qui tam</span></i> suits to
circumvent state sovereign immunity is of questionable =
constitutionality, and
the Supreme Court recently noted that &quot;there is 'a serious doubt' =
on that
score.&quot;<a =
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_66_"><sup>(66)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Third, past
rulings of the Supreme Court cast doubt on whether an effort to =
substitute a
federal agency for the copyright owner in order to circumvent state =
sovereign
immunity would be upheld. In <i><span style=3D'font-style:italic'>New =
Hampshire
v. Louisiana</span></i>,<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_67_"><sup>(67)<=
/sup></a>
the Supreme Court dealt with a situation very close to the one =
contemplated by
this option. In that case, several individuals with creditor claims =
against the
State of <st1:State w:st=3D"on">Louisiana</st1:State> assigned those =
rights to
the State of <st1:State w:st=3D"on"><st1:place w:st=3D"on">New =
Hampshire</st1:place></st1:State>.
Their hope was that <st1:State w:st=3D"on">New Hampshire</st1:State> =
would be
able to proceed against <st1:State w:st=3D"on"><st1:place =
w:st=3D"on">Louisiana</st1:place></st1:State>
where individuals were met with the roadblock of sovereign immunity. The =
Court
did not allow the scheme to prevail, holding that &quot;one State cannot =
create
a controversy with another State . . . by assuming the prosecution of =
debts
ow[ed] by the other State to its =
citizens.&quot;<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Similarly, in <i><span
style=3D'font-style:italic'>North Dakota v. Minnesota</span></i>,<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_68_"><sup>(68)<=
/sup></a>
North Dakota sued Minnesota for damages to state and private property as =
a
result of flooding caused by Minnesota's rerouting of a river. The Court =
noted
that the farmers whose lands were damaged contributed to a fund to pay =
for this
litigation and that those contributors would share in any damages award. =
Citing
<i><span style=3D'font-style:italic'>New Hampshire v. =
Louisiana</span></i>, the
Court dismissed the claims for damage to private property on grounds of
sovereign immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Further, citing
these cases, the Supreme Court held in <i><span =
style=3D'font-style:italic'>Hawaii
v. Standard Oil Co.</span></i><a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_69_"><sup>(69)<=
/sup></a>
that:<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>[a]n =
action
brought by one State against another violates the Eleventh Amendment if =
the <st1:place
w:st=3D"on"><st1:PlaceName w:st=3D"on">plaintiff</st1:PlaceName> =
<st1:PlaceType
w:st=3D"on">State</st1:PlaceType></st1:place> is actually suing to =
recover for
injuries to designated individuals.<a
href=3D"http://www.copyright.gov/docs/regstat72700.html#N_70_"><sup>(70)<=
/sup></a><o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>It is =
uncertain
whether the Federal Government could succeed in championing the cases of
individuals where States could not. However, these decisions cast =
serious doubt
on the constitutionality of this option.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Fourth, expansion
of the role of the Federal Government in a sphere that has heretofore =
been the
sole concern of private litigants runs counter to recent trends in =
government.
It would be difficult to defend the use of taxpayer money to litigate on =
behalf
of multi-million dollar corporations. Of course, if the Supreme Court =
has left
no other option for the effective enforcement of intellectual property =
rights,
the justification might be easier to find.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>A =
fourth option is
for Congress to abrogate state sovereign immunity by =
appropriately-tailored
legislation under Section 5 of the Fourteenth Amendment. As noted above, =
the
Supreme Court's decision in <i><span style=3D'font-style:italic'>Florida =
Prepaid</span></i>
severely limits the application of this option. In order to adopt a =
strong
abrogation provision that would still be within the limitations of =
<i><span
style=3D'font-style:italic'>Florida Prepaid</span></i>, the legislation =
would
have to be tailored to meet three criteria.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>First, Congress
must establish a strong record of infringement by States. If, as would =
be
desirable, the legislation were to include patent and trademark, a =
record of
infringement by States of those rights must be established as well. As =
noted
above, this record is not currently available. Second, the abrogation =
must be
drafted so that it applies only to States that do not provide a remedy =
or some
form of due process to an aggrieved copyright owner. Such remedies need =
not be
equivalent to the standards of Title 17. This option therefore carries =
with it
a risk of undermining national uniformity of copyright protection. It is
unclear whether the abrogation must be flexible so as to apply only to =
States
that provide no remedy at the time a particular suit is brought (or for =
the
entire duration of a suit), or whether the availability of remedies at =
the time
of enactment permanently defines the scope of the abrogation. Third, the
abrogation may only extend to non-negligent infringement by a State.
Additionally, an abrogation provision drafted so as to maximize its =
chances of
surviving judicial scrutiny by requiring individual plaintiffs to =
demonstrate a
deprivation of property without due process, thus obviating the need for
extensive legislative findings, might be impractical for individual =
litigants
and thus ineffective.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>A =
fifth option is
to condition States' exercise of federal intellectual property rights,
including copyright, patent and trademark rights, on a waiver of =
sovereign
immunity for infringement suits. In <i><span =
style=3D'font-style:italic'>College
Savings</span></i>, the Court overturned <i><span =
style=3D'font-style:italic'>Parden</span></i>
and completely eliminated the implied waiver doctrine. This option, =
therefore,
would have to be structured to induce States affirmatively to waive =
their
sovereign immunity, most likely by state statute. This could be =
accomplished by
rendering state works ineligible for protection in the absence of an =
express
waiver by the State of its immunity in copyright infringement cases. The
incentive for States to waive their immunity could be made even stronger =
by
tying the issues of copyright, patent, and trademark infringement =
together.
There is a symmetry to this approach. It is clear and salable, with a
compelling proportionality and nexus between the problem and the =
remedy.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>There =
is language
in the majority opinion in <i><span style=3D'font-style:italic'>College =
Savings</span></i>
that could be read as a dicta commentary suggesting that if Congress =
conditions
State's access to protections under a law enacted pursuant to the =
Commerce
Clause on waiver of state immunity, such waiver is not voluntary and =
thus not
valid. However, the better reading of the relevant language is that =
implied
waiver is inherently involuntary but that where Congress clearly gives =
the
State a choice, so long as the choice is not coercive, a State's choice =
to
explicitly waive its immunity is effective.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>There =
is little
case law on express waiver, and what little there is focuses on whether =
or not
an express waiver occurred, rather than on the State's motivation in =
waiving
immunity. In other contexts of waivers of constitutional rights or =
immunities,
the Court has looked to the circumstances surrounding the waiver and, on =
occasion,
found the waiver to be ineffective where it was essentially coerced. =
This
option arguably contains an element of coercion because it conditions =
States'
enforcement of intellectual property rights on a waiver of =
immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Some =
may view this
approach as overly coercive, although the Copyright Office has not yet =
heard a
legal argument that persuasively supports that view. There are two =
strong
counter-arguments: First, this approach is no more coercive than the =
unilateral
abrogation of State immunity in current law. While that law is probably
unenforceable in light of the Court's rulings, it was nonetheless =
adopted with
the support of many current Members of Congress. Unlike abrogation, =
States
would be given a real choice between waiving immunity or accepting the
consequences. As discussed below, many States may take the latter =
course.
Second, there is a strong nexus between the consequences of not waiving
immunity and the problem that a waiver is intended to solve. In the =
absence of
waiver, copyright owners are deprived of their rights. This approach =
merely
imposes the same result on non-waiving States. The issue is one of =
fundamental
fairness.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>It is =
far from a
foregone conclusion that States will uniformly waive their immunity =
under this
approach. Many States may conclude that immunity from copyright =
infringement
suits serves their interests better than the ability to enforce their =
own
copyrights, and that the same is true with respect to patents and =
trademarks.
Linking all federal intellectual property rights (including copyright, =
patent,
and trademark) together would strengthen the incentive for States to =
waive
their immunity.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>After =
reviewing
the above options, the Copyright Office came to two conclusions. First, =
an
approach that would effectively abrogate state sovereign immunity from =
suits
for infringement of federal intellectual property rights would be the =
most
desirable approach. A straightforward return to the status quo as it was =
before
the Supreme Court ruled on the constitutionality of the PRCA and the =
TRCA would
resolve the issue in a fair and equitable way. Unfortunately, that is =
the one
approach that the rulings of the Court have clearly foreclosed. The =
variation
on this approach that would attempt to abrogate sovereign immunity by
navigating the minefield of conditions laid down by the Court is =
problematic.
We do not yet know whether Congress could build a record of findings =
that would
satisfy the Court that abrogation is justified. Even if it did, the =
limitation
to cases of non-negligent infringement could lead to denial of relief in =
a
significant number of cases of infringement. We are skeptical whether =
this
approach would satisfy both requirements of constitutionality and
effectiveness. <o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>At =
the beginning
of this year, we sent you a draft of legislation that we believe would =
be both
constitutional and effective. It follows the fifth approach that I =
outlined
above. The centerpiece of the proposal is a provision that would =
prospectively
strip a State's intellectual property of protection unless that State =
waived
its sovereign immunity for intellectual property suits in federal court. =
This
provision would effectuate itself by operation of law. For the reasons
discussed above, we believe that this approach is the best opportunity =
for a
solution that is both constitutional and =
effective.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>Senator Leahy
introduced S. 1835, the Intellectual Property Protection Restoration =
Act, on
October 29, 1999. The overall approaches of the two proposals are =
similar. The
fact that Senator Leahy and the Copyright Office independently arrived =
at
similar approaches after considering a number of alternatives lends =
support to
our belief that it is the best of a number of imperfect =
alternatives.<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:
12.0pt'>We have discussed our proposal with other interested parties =
and, in
response to their comments, have modified it in some respects. This is =
not the
occasion to address the details of our proposal or Senator Leahy's, but =
we hope
that the next Congress will be in a position to consider and enact =
effective
and constitutional legislation that will undo the damage caused by the =
Court's
recent decisions. <o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>Some =
appear to
advocate that Congress not seek to enact a solution right away, but =
rather wait
and see how the situation develops. This approach has the benefit of =
providing
ample time for studies that may be necessary if Congress ultimately =
chooses to
attempt to abrogate state sovereign immunity. However, this approach =
also
delays justice to aggrieved copyright owners, and if Congress ultimately =
does
not choose to enact an abrogation provision, the delay will have been =
largely
unnecessary.<o:p></o:p></span></font></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><b><font
size=3D5 face=3D"Times New Roman"><span =
style=3D'font-size:18.0pt;font-weight:bold'>IV.
Conclusion<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><font
size=3D3 face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>It is =
only logical
that in the current legal environment, without an alteration of the =
status quo,
infringements by States are likely to increase. Only Congress has the =
power to
remedy the existing imbalance, and it is the recommendation of the =
Copyright
Office that it do so. The Supreme Court's rulings and State's rights =
must
surely be respected, but the current state of affairs is unjust and
unacceptable. Congress should use the tools it has to prevent the =
successful
assertion of state sovereign immunity where it has become a tool of =
injustice.<o:p></o:p></span></font></p>

<div class=3DMsoNormal align=3Dcenter style=3D'text-align:center'><font =
size=3D3
face=3D"Times New Roman"><span style=3D'font-size:12.0pt'>

<hr size=3D2 width=3D"100%" align=3Dcenter>

</span></font></div>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_1_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>1.
</span></font></a>&quot;The Judicial power of the <st1:country-region =
w:st=3D"on">United
States</st1:country-region> shall not be construed to extend to any =
suit in
law or equity, commenced or prosecuted against one of the =
<st1:country-region
w:st=3D"on">United States</st1:country-region> by Citizens of another =
State, or
by Citizens or Subjects of any <st1:place w:st=3D"on"><st1:PlaceName =
w:st=3D"on">Foreign</st1:PlaceName>
<st1:PlaceType w:st=3D"on">State</st1:PlaceType></st1:place>.&quot; =
<st1:country-region
w:st=3D"on"><st1:place w:st=3D"on">U.S.</st1:place></st1:country-region> =
Const.,
amend. XI. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_2_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>2.
</span></font></a><i><span style=3D'font-style:italic'>College Savings =
Bank v. <st1:State
w:st=3D"on">Florida</st1:State> Prepaid Postsecondary Educ. Expense =
Bd</span></i>.,
119 S. Ct. 2219 (1999)<i><span style=3D'font-style:italic'>; <st1:State =
w:st=3D"on">Florida</st1:State>
Prepaid Postsecondary Educ. Expense Bd. v. College Savings =
Bank</span></i>,
119&nbsp;S. Ct. 2199 (1999)<i><span style=3D'font-style:italic'>; Alden =
v. <st1:State
w:st=3D"on">Maine</st1:State></span></i>, 119 <st1:place w:st=3D"on">S. =
Ct.</st1:place>
2240 (1999). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_3_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>3.
</span></font></a><i><span style=3D'font-style:italic'>Wihtol v. =
Crow</span></i>,
309 F.2d 777 (8<sup>th</sup> Cir. 1962). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_4_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>4.
</span></font></a>377 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
184 (1964). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_5_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>5.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
196. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_6_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>6.
</span></font></a>17 U.S.C. =A7 501(a). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_7_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>7.
</span></font></a>473 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
234 (1985). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_8_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>8.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
242. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_9_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>9.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
246. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_10_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>10.
</span></font></a>491 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
1 (1989). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_11_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>11.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
19-20. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_12_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>12.
</span></font></a>Pub. L. No. 101-553. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_13_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>13.
</span></font></a>17 U.S.C. =A7 511. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_14_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>14.
</span></font></a>15 U.S.C. =A7=A7&nbsp;1122, 1125(a)(2). =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_15_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>15.
</span></font></a>35 U.S.C. =A7=A7 271(h), 296. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_16_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>16.
</span></font></a>517 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
44 (1996). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_17_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>17.
</span></font></a><st1:State w:st=3D"on"><i><span =
style=3D'font-style:italic'>Id</span></i>.</st1:State>
at 55 (quoting <i><span style=3D'font-style:italic'>Green v. =
Mansour</span></i>,
474 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
64, 68 (1985)). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_18_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>18.
</span></font></a><st1:State w:st=3D"on"><i><span =
style=3D'font-style:italic'>Id</span></i>.</st1:State>
at 59 <i><span style=3D'font-style:italic'>citing Fitzpatrick v. =
Bitzer</span></i>,
427 <st1:country-region w:st=3D"on">U.S.</st1:country-region> 445, 455 =
(1976); <i><span
style=3D'font-style:italic'>Pennsylvania v. Union Gas</span></i>, 491 =
<st1:country-region
w:st=3D"on"><st1:place w:st=3D"on">U.S.</st1:place></st1:country-region> =
1, 19-20
(1989). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_19_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>19.
</span></font></a><i><span style=3D'font-style:italic'>Seminole =
Tribe</span></i>,
517 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
at 72. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_20_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>20.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
77
(Stevens, J., dissenting). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_21_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>21.
</span></font></a>521 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
507 (1997). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_22_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>22.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
519. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_23_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>23.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
520. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_24_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>24.
</span></font></a>119 <st1:place w:st=3D"on">S. Ct.</st1:place> 2240 =
(1999). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_25_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>25.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2246-47. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_26_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>26.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2254. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_27_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>27.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2256
(emphasis added). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_28_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>28.
</span></font></a><st1:State w:st=3D"on"><i><span =
style=3D'font-style:italic'>Id</span></i>.</st1:State>
at 2247 (quoting <i><span style=3D'font-style:italic'>Prinz v. United =
States</span></i>,
521 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
898, 919-20 (1997)(quoting The Federalist No. 15 at 109)). =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_29_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>29.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2258-59 (&quot;[T]he
Constitution did not reflect an agreement between the States to respect =
the
sovereign immunity of one another....&quot;). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_30_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>30.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id.</span></i></st1:place></st1:State> at =
2267. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_31_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>31.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_32_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>32.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_33_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>33.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2266. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_34_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>34.
</span></font></a>119 <st1:place w:st=3D"on">S. Ct.</st1:place> 2219 =
(1999). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_35_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>35.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2222. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_36_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>36.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2223. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_37_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>37.
</span></font></a>U.S. Const., amend. XIV. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_38_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>38.
</span></font></a><i><span style=3D'font-style:italic'>College =
Savings</span></i>,
119 <st1:place w:st=3D"on">S. Ct.</st1:place> at 2224-25. =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_39_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>39.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2224. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_40_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>40.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2224-25. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_41_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>41.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2226. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_42_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>42.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2228. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_43_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>43.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2231. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_44_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>44.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id.</span></i></st1:place></st1:State> =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_45_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>45.
</span></font></a>119 <st1:place w:st=3D"on">S. Ct.</st1:place> 2199 =
(1999). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_46_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>46.
</span></font></a>35 U.S.C. =A7=A7 271(h), 296(a). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_47_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>47.
</span></font></a><st1:State w:st=3D"on"><i><span =
style=3D'font-style:italic'>Florida</span></i></st1:State><i><span
style=3D'font-style:italic'> Prepaid,</span></i> 119 <st1:place =
w:st=3D"on">S. Ct.</st1:place>
at 2205. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_48_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>48.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2206. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_49_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>49.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2207. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_50_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>50.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id.</span></i></st1:place></st1:State> =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_51_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>51.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2208. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_52_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>52.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> =
2210. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_53_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>53.
</span></font></a><st1:State w:st=3D"on"><i><span =
style=3D'font-style:italic'>Id</span></i>.</st1:State>
at 2209 (citing <i><span style=3D'font-style:italic'>Daniels v. =
Williams</span></i>,
474 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
327, 328 (1986)). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_54_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>54.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2210. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_55_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>55.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
2215 n.9
(Stevens, J., dissenting). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_56_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>56.
</span></font></a>204 F.3d 601 (5<sup>th</sup> Cir. 2000). =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_57_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>57.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
606. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_58_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>58.
</span></font></a>199 F.3d 279 (5<sup>th</sup> Cir. 2000). =
<o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_59_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>59.
</span></font></a>209 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
123 (1908). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_60_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>60.
</span></font></a>Monographs are individual works such as a book, poem, =
or
song. Not included in the survey were serial registrations such as =
magazines.
Based on a brief investigation into the number of serials registered by =
certain
state universities, the Copyright Office has reason to believe that such
registrations may approach or even equal the number of monograph =
registrations
that were found. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_61_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>61.
</span></font></a>This assumes that States will generally not waive =
their
immunity in federal courts without some incentive. Of course, where a =
State has
waived its immunity from suits to enforce intellectual property rights =
in
federal courts, no remedy is needed. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_62_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>62.
</span></font></a>Similar concerns underlie the exclusive federal =
jurisdiction
for patent infringement cases. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_63_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>63.
</span></font></a>483 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
203 (1987). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_64_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>64.
</span></font></a>The same is most likely true with respect to patents =
and
trademarks. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_65_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>65.
</span></font></a>In <i><span style=3D'font-style:italic'>Seminole =
Tribe</span></i>,
the Court held that the plaintiff could not use <i><span =
style=3D'font-style:
italic'>Ex parte Young</span></i> to enforce the federal statute at =
issue. The
statute contained detailed remedial provisions and the Court found that
permitting the plaintiff to proceed under <i><span =
style=3D'font-style:italic'>Ex
parte Young</span></i> would, in effect, create a judicial remedy that =
Congress
did not intend. Although this does not appear directly applicable in the
copyright context (the Copyright Act authorizes injunctions against
infringers), it could signal that the Court will take a more restrictive =
view
of <i><span style=3D'font-style:italic'>Ex parte Young</span></i> in =
future
cases. <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_66_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>66.
</span></font></a><i><span style=3D'font-style:italic'>Vermont Agency of =
Nat.
Resources v. Ex Rel. Stevens</span></i>, 120 <st1:place w:st=3D"on">S. =
Ct.</st1:place>
1858, 1870 (2000). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_67_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>67.
</span></font></a>108 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
76 (1883). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_68_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>68.
</span></font></a>263 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
365 (1923) . <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_69_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>69.
</span></font></a>405 <st1:country-region w:st=3D"on"><st1:place =
w:st=3D"on">U.S.</st1:place></st1:country-region>
251 (1972). <o:p></o:p></p>

<p class=3DMsoNormal =
style=3D'mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'><a
name=3D"N_70_"><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:12.0pt'>70.
</span></font></a><st1:State w:st=3D"on"><st1:place w:st=3D"on"><i><span
style=3D'font-style:italic'>Id</span></i>.</st1:place></st1:State> at =
258 n. 12
(citations omitted).<o:p></o:p></p>

<p class=3DMsoNormal><font size=3D3 face=3D"Times New Roman"><span =
style=3D'font-size:
12.0pt'><o:p>&nbsp;</o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'><o:p>&nbsp;</o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'><o:p>&nbsp;</o:p></span></font></p>

<div>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Cameron =
Cox<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Senior Director, Sales and =
Marketing<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>INTELECOM Intelligent =
Telecommunications<o:p></o:p></span></font></p>

<p class=3DMsoNormal><st1:Street tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on"><st1:address tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on"><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial;color:navy'>150 East Colorado Boulevard, Suite =
300</span></font></st1:address></st1:Street><font
size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;
color:navy'><o:p></o:p></span></font></p>

<p class=3DMsoNormal><st1:place tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on"><st1:City tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on"><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;
font-family:Arial;color:navy'>Pasadena</span></font></st1:City><font =
size=3D2
color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;
color:navy'>, <st1:State tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on">CA</st1:State>=A0 <st1:PostalCode tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on">91105-1937</st1:PostalCode></span></font></st1:place><font =
size=3D2
color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;
color:navy'><o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Toll free: (800) =
576-2988<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Outside the <st1:country-region =
w:st=3D"on"><st1:place
tabIndex=3D"0"
style=3D"BACKGROUND-POSITION: left bottom; BACKGROUND-IMAGE: =
url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x"
w:st=3D"on">United States</st1:place></st1:country-region>: (626) =
796-7300<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Fax: (626) =
577-4282<o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'>Extension =
112<o:p></o:p></span></font></p>

<div>

<p class=3DMsoNormal><font size=3D3 color=3Dnavy face=3D"Times New =
Roman"><span
style=3D'font-size:12.0pt;color:navy'><o:p>&nbsp;</o:p></span></font></p>=

</div>

<div>

<p class=3DMsoNormal style=3D'margin-left:.25in'><font size=3D3 =
color=3Dnavy
face=3D"Times New Roman"><span style=3D'font-size:12.0pt;color:navy'><a
href=3D"http://www.intelecom.org/pdf/06_07_Catalog_Web.pdf"><span
style=3D'text-decoration:none'><img border=3D0 width=3D131 height=3D179
id=3D"_x0000_i1029" =
src=3D"cid:image002.jpg@01C6F107.6D14E9B0"></span></a><o:p></o:p></span><=
/font></p>

</div>

<div>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'><o:p>&nbsp;</o:p></span></font></p>

</div>

<p class=3DMsoNormal style=3D'margin-left:9.0pt'><b><font size=3D2 =
color=3Dnavy
face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;color:navy;
font-weight:bold'>2006/2007 General =
Catalog<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal style=3D'margin-left:9.0pt'><b><font size=3D2 =
color=3Dnavy
face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;color:navy;
font-weight:bold'>=A0Core Curriculum =
Content<o:p></o:p></span></font></b></p>

<p class=3DMsoNormal><b><font size=3D2 color=3Dnavy face=3DArial><span
style=3D'font-size:10.0pt;font-family:Arial;color:navy;font-weight:bold'>=
DVD </span></font></b><b><font
size=3D2 color=3Dnavy face=3DWingdings><span =
style=3D'font-size:10.0pt;font-family:
Wingdings;color:navy;font-weight:bold'>&#376;</span></font></b><b><font =
size=3D2
color=3Dnavy face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;
color:navy;font-weight:bold'> VHS </span></font></b><b><font size=3D2 =
color=3Dnavy
face=3DWingdings><span =
style=3D'font-size:10.0pt;font-family:Wingdings;color:navy;
font-weight:bold'>&#376;</span></font></b><b><font size=3D2 color=3Dnavy
face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;color:navy;
font-weight:bold'> Digital Media </span></font></b><b><font size=3D2 =
color=3Dnavy
face=3DWingdings><span =
style=3D'font-size:10.0pt;font-family:Wingdings;color:navy;
font-weight:bold'>&#376;</span></font></b><b><font size=3D2 color=3Dnavy
face=3DArial><span =
style=3D'font-size:10.0pt;font-family:Arial;color:navy;
font-weight:bold'> ITV</span></font></b><font color=3Dnavy><span
style=3D'color:navy'><o:p></o:p></span></font></p>

<p class=3DMsoNormal><font size=3D2 color=3Dnavy face=3DArial><span =
style=3D'font-size:
10.0pt;font-family:Arial;color:navy'><o:p>&nbsp;</o:p></span></font></p>

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------=_NextPart_000_004C_01C6F107.6DC09300--

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.