Re: [Videolib] An idea: reclaiming fair use statewide

George Lindell Abbott (glabbott@syr.edu)
Mon, 16 Oct 2006 14:10:52 -0400

Can a state invoke ?eminent domain? to seize the rights of a copyright holder?

It may not be as impossible as it sounds.

Note the following:

1. The Supreme Court issued a series of 5-4 decisions (Chavez v. Arte
Publico Press (2000) et al.) that upheld state sovereign immunity in
the context of intellectual property law. That is, a state is immune
from law suits for copyright violations. It is not a simple as this
but it is an open window. See
http://www.unc.edu/~unclng/copy-corner65.htm and
http://www.techlawjournal.com/topstories/2006/20060123.asp

2. Re eminent domain, there is currently a case in court in New York
involving the use of eminent domain to seize contractual lease rights,
no real property is being taken. The following is a brief news
report. There is one more possible appeal. The permission to fill
that appeal is being requested right now. If the permission is denied
(within the next 30 days) the ruling will stand.

Friday, September 29, 2006 (Syracuse (NY) Post Standard)
Court upholds eminent domain use against Carousel Center stores
The Supreme Court Appellate Division in Rochester today upheld the
eminent domain taking of lease rights from 12 Carousel Center mall
stores by the Syracuse Industrial Development Agency.

The decision, if it withstands any possible appeal to the state's
highest court, the Court of Appeals, clears the way for developer
Robert Congel to expand the mall.

The city development agency, at Congel's request, used it eminent
domain powers to take from the stores lease rights that gave them veto
power over the expansion. The stores have said they are concerned with
how the expansion will affect their businesses.

The Post-Standard will have more details on the court's decision on Saturday.

I am not suggesting that all rights of the copyright holder be seized.
As is proposed in the New York mall case only certain rights
contained in the leases are designated to be seized through eminent
domain. Eminent domain balances the public needs vs. private
interests and might restore some balance to copyright.

George L. Abbott
librarian emeritus
Syracuse University Library
311 Stonecrest Drive
Syracuse, NY 13214-2432
glabbott@syr.edu

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.