
Court: Photographer has no recourse against university copyright infringement - FireBeyond
https://www.houstonchronicle.com/business/article/Texas-court-says-photographer-has-no-recourse-13973674.php
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caf
So does this mean that Texas schools, prisons, universities, hospitals etc can
freely copy and use commercial software, films, books and other similar works?

It seems like under this precedent the University of Houston could just create
their own copies of whatever textbooks they want for their students,
potentially even selling those copies.

~~~
asdfasgasdgasdg
I guess that any out of state company would be able to sue Texas in federal
court, where Texas' weird laws do not apply, and they cannot invoke sovereign
immunity. But if the company is incorporated in Texas and only does business
in the state, I guess the answer is yes?

Not a lawyer or anything, but this is my reading. Since no interstate commerce
is happening here, the photographer cannot sue in federal court.

Edit: I think what I wrote above is wrong, having read a link in one of the
other comments. All the same, my guess is that states are not going to be
skipping payment on Windows licenses and taking on Microsoft in the courts.
But they may be able to continue picking on little guys who have no power, as
it has ever been.

~~~
dragonwriter
> I guess that any out of state company would be able to sue Texas in federal
> court, where Texas' weird laws do not apply, and they cannot invoke
> sovereign immunity.

“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.” —US Constitution, Amendment XI

~~~
zdragnar
The supreme court has, however, held that federal courts can enjoin states
from violating federal law, and copyright infringement is a federal offense
under Title 17 of the US Legal Code.

~~~
wahern
It's all much more mundane and technical than this.

The reason that this suit originated in Texas state court is because their
legal argument was based on Takings jurisprudence. It's complicated, but IIRC
SCOTUS has effectively required that Takings claims against states originate
in state court. They do this by way of the so-called ripeness doctrine. A
federal court will invariably reject a Takings claim unless you can show that
you pursued and failed to achieve a remedy through state administrative and
legal processes, and as a practical matter this means pursuing a claim up to
the state's supreme court.

Ripeness is not directly based on statute or the constitution. If we're being
cynical, it's based on SCOTUS disliking Takings cases, particularly so-called
regulatory takings (which arguably describes this case), because they involve
difficult, highly contextual line drawing that don't lend themselves to clear-
cut legal doctrines. So they basically punt. If we're being kind, they do this
because forcing claimants to exhaust all state-based remedies provides a ton
of factual evidence and legal arguments that benefits adjudicating such cases
at the federal level.

If the claimant here made a simple copyright infringement claim they would
have been able to go directly to federal court, and in fact it's rare not to
do this. Actually, I think federal courts have exclusive jurisdiction over
copyright infringement claims; the scope of 1976 Copyright Act leaves very
little room, if any, for copyrights under state law. Except for pre-1976
productions anything copyright-related is basically controlled by federal
copyright and therefore you're _required_ to go to federal court.

Again, they had a novel legal argument, perhaps in an attempt to subvert
federal jurisdiction, and more specifically to get around whatever Fair Use
defenses the university could have made. That's just conjecture, though. I
haven't read the case.

EDIT: You're not required to go to federal court for copyright claims simply
because the claim is a federal issue. It's because federal statute explicitly
gives federal courts exclusive jurisdiction over federal copyright claims.

~~~
wahern
After reading more recent caselaw I think, in practical terms, the reason they
attempted a Takings claim is because they wanted monetary damages, whereas
because of the peculiar contours of sovereign immunity jurisprudence the
remedy for an infringement claim would have at best been an injunction. And
apparently more recent sovereign immunity caselaw has cast doubt in some
circles on the ability to even get an injunction. I'd personally be surprised
it that notion was ratified by SCOTUS, but clearly I haven't been keeping up
so my opinion isn't worth much.

EDIT: Just this month SCOTUS agreed to take up the specific issue of sovereign
immunity vs copyright: [https://www.scotusblog.com/case-files/cases/allen-v-
cooper/](https://www.scotusblog.com/case-files/cases/allen-v-cooper/)

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erichurkman
> Olive tried the approach after the University of Houston rejected his claim
> that the public university should pay for a photo it used without permission
> in web and print publications, contending the university has sovereign
> immunity, a well-established legal principle that protects a state from
> getting sued.

Terrifying. So the University of Houston claims they can just steal whatever
they want?

~~~
hfkajshfaks
It's sovereign immunity. Any state agency can do whatever it wants and claim
immunity unless the Feds get involved. The Feds can do whatever they want full
stop.

The only constraint is that the state can allow itself to be sued, and
therefore you have some recourse that way.

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cryptonector
And whatever constraints the courts interpret the constitutions as imposing on
the state.

~~~
hfkajshfaks
Kinda of.

The courts are generated, and therefore subject to, the executive. It's easy
to see how an executive could stack a court (a la Roosevelt). Or simply
denying the courts the ability to enforce their rulings and doing whatever
(Jackson).

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Mathnerd314
A similar case is pending in the Supreme Court:
[https://blog.ericgoldman.org/archives/2019/06/statute-of-
que...](https://blog.ericgoldman.org/archives/2019/06/statute-of-queen-annes-
revenge-supreme-court-grants-certiorari-in-allen-v-cooper.htm)

They directly sued for copyright infringement rather than trying to use
eminent domain.

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userbinator
It's very bizarre to see this seemingly very pro-public-domain/anti-
copyright/anti-IP decision given the reputation that Texas has for patent
trolls.

~~~
tedivm
It's not pro public domain though, it's basically just saying that copyright
doesn't apply to the government.

~~~
icebraining
Not really, because thedefendent didn't claim copyright infringement (which
the Texas courts couldn't rule on anyway, they would have had to go to federal
court).

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lloydde
_> Olive tried the [unlawful “taking”] approach after the University of
Houston rejected his claim that the public university should pay for a photo
it used without permission in web and print publications, contending the
university has sovereign immunity, a well-established legal principle that
protects a state from getting sued._

------
deogeo
...does this mean the US government doesn't have to respect copyright? Seems
unusual...

~~~
drivingmenuts
This was in state court. Federal laws may be different.

~~~
hfkajshfaks
Constitutionally, they aren't. But congress passed laws waiving S.I. in some
cases.

Of course, laws can be repealed.

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sailfast
I was under the impression that sovereign immunity only applied to suing of
state actors (ie employees / officials, etc) but I guess it can be applied
writ-large to entire institutions as well based on the copyright infringement
ruling?

Sounds like a job for the state legislature to handle - writing out an
exception to immunity for infringement. Otherwise why would anyone bother
attempting to do licensed work in Texas at all?

~~~
qtplatypus
The immunity from copyright and patent claims is critical to universty
researches. Without it basic research would get mired in patent and copyright
claims.

Many would be eventually ruled as fair use but that requires a judge to make a
judgement as to the fair use factors. SI just requires the judge to see that
it is the uni of Texas.

The uni doesnt care about the photographers licence fee. It cares about not
getting by a phama company because a researcher happened to use a chemical
that was under patent.

~~~
tssva
Plenty of research gets done by corporations, private universities, and
research institutes with needing immunity from copyright and patent claims. If
public universities want immunity from copyright and patent claims then the
resulting research should not be able to be copyrighted or patented.

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fencepost
I'm kind of curious about whether he'd have options to pursue this under the
DMCA. Are there legal grounds for the University to ignore takedown notices?
I'm seeing things that say the university has immunity against being sued for
infringement (not sure quite why, state vs federal jurisdiction), but that's a
different thing.

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test6554
So could universities embed an entire textbook in their course descriptions?

Could they post full feature films on their websites?

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sk5t
Another clever move by Texas secessionists in their strategy to make the state
too unpalatable to deal with or in.

~~~
dang
Please don't use HN for regional battle.

~~~
sk5t
You've assumed malice where none was intended. Downvotes before self-
redacting, nevertheless.

~~~
dang
No malice assumed! just reacting to how the comment appears on the surface,
because that's how most readers are going to perceive it. If your intent was
otherwise, you need to make that explicit. Intent doesn't translate by default
on the internet, unfortunately.

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merryandrew
This makes no sense. Imagine that SpaceX took a photograph on the moon, and
then a university freely used the image in its marketing materials. Would that
make sense? Would it make any more sense if the university had a space
program? No.

~~~
skunkworker
SpaceX isn’t the greatest example here. They commonly release their photos
into the public domain with a Creative Commons waiving all copyright and
related or neighboring rights to their work. Though the point still stands
with photographers and photo releases in general.

~~~
merryandrew
Agreed. As you realized, though, the point is that copyrighted work should not
be used without compensating the creator.

~~~
TeMPOraL
A lot of problems around copyright is a self-inflicted mess caused by (IMO)
wrong abstractions, not reflecting the nature of the works and the media. For
instance, photography has an issue of _copyrights on buildings_ , which is
prima facie a ridiculous concept, but it is recognized to some extent around
the world, including in the US.

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droithomme
Reading the article solves one mystery, but brings up another.

The photographer for some reason did not pursue this as a copyright
infringement claim. Instead he argued that it was an eminent domain case where
the state had seized his private property and was, according to Texas state
law, required to compensate him for the seized property.

It would be sufficient at this point for the state to rule that copyright
infringement is not the same as eminent domain seizures, rule against him, and
order him to pay the defendant's costs for filing a frivolous case.

Instead they oddly ruled instead that the school has sovereign immunity from
lawsuits, and ordered him to pay their costs.

It is strange if the state can not be held accountable in court for eminent
domain seizures despite the state law to the contrary.

It is strange that they ruled that way rather than ruling that copyright
infringement is not a domain seizure.

It is strange that the plaintiff filed this case this way.

~~~
ccleve
Sovereign immunity is the legal doctrine that the government can't be sued for
anything unless it specifically allows you to do so. In this case, Texas state
law does not have a provision that allows it to be sued for copyright
infringement. So, the photographer could not file a claim for copyright
infringement, either in state or federal court. That's why he tried the novel
approach of suing them under the "takings" clause of the US Constitution. The
Bill of Rights is a specific case where the government has allowed itself to
be sued for violating those provisions. Under Supreme Court precedent, most
provisions of the Bill of Rights apply to the states as well as to the federal
government.

~~~
wahern
Sovereign immunity doesn't preclude suing a public university; it doesn't
preclude it as a general matter, and definitely doesn't preclude it wrt
copyright. One way to look at it is that a university is akin to a
municipality--it exercises state powers but it's not the state, per se.

There are many well known copyright claims against public universities. The
one that immediately came to mind (I forgot the case citation) would have
supported his infringement claim, though it involved xerox'ing of academic
textbooks so not quite on point.

See my post elsethread for the most likely reason they went to state court.

~~~
ccleve
Very interesting. So how do you distinguish between the state and a branch or
arm or subsidiary of a state? A department (say, the Department of Motor
Vehicles) is clearly the state. What if a public university is operated just
like a department? If it's taxpayer-funded, professors are public employees,
and management is appointed by the governor?

I could see how it would not be the state if it were separately incorporated,
funded, and governed, just like a municipality.

So what's the rule that distinguishes entities that have sovereign immunity
from those that don't?

~~~
AstralStorm
The necessity of the taking for the purpose of operation. Same rule that
limits federal government agencies from taking anything they want. A
constitutional grant.

Use of this specific photograph is not required by any means that could be
seriously construed.

