To: State government officials receiving free subscriptions.
From: David Carney.
Re: Termination of state officials' subscriptions .
Date: January 1, 2003.
I have regrettably decided to discontinue offering free subscriptions to the Tech Law Journal Daily E-Mail Alert to state government officials. These subscribers are mostly attorneys who work for state public utilities commissions; attorneys who work for local governments handling rights of way, cable franchising, and broadband deployment issues; cybercrime prosecutors; and staff of state legislators.
Free subscriptions have been offered to both federal and state government officials. Unfortunately, I have learned of some incidents of infringement by state officials. However, the bigger problem is in the lack of enforcement opportunities. States are immune from suits for damages for copyright infringement. Moreover, as a result of this, some states are egregious infringers of copyrights.
Some states have filed preemptory suits, in U.S. District Court in their state, seeking ownership of, or substantial rights to take, the property of others. When this happens, the remedies of intellectual property owners is limited.
The problem stems first from the recent Supreme Court opinions interpreting the 11th Amendment. For example, in Seminole Tribe v. Florida the Court held that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts. The Court extended this to the context of intellectual property in the 1999 rulings in Florida Prepaid v. College Savings Bank (invalidating the Patent and Plant Variety Protection Remedy Clarification Act) and College Savings Bank v. Florida Prepaid (invalidating the Trademark Remedy Clarification Act).
Secondly, based on my review of a number of trial and appeals courts opinions, and testimony submitted to Congress on this issue, some states are now egregious infringers of intellectual property rights. Third, I have reviewed several cases with an eye towards litigation tactics employed by some states. Some states have acted aggressively and with impunity, knowing that they face little exposure, but stand to gain intellectual property rights at no cost.
So, I have concluded that I simply face too much exposure by providing so many free subscriptions to state employees. The best course of action is simply not to deal with states and their political subdivisions.
State government officials currently receiving free subscriptions will be removed from the subscription list after distribution of the January 17 issue.