Subject: Georgia State University Lawsuit From: "Lindsey, S Marc" <lindseym@xxxxxxx> Date: Thu, 17 Apr 2008 14:14:50 -0700 |
The lawsuit against GSU may pan out to answer many festering questions about fair use on college campuses and individual liability under state sovereign immunity. If the case ever reaches the 11th Circuit Court of Appeals, I think it could be a first significant interpretation of application of fair use to electronic reserves and digital course packs. This case is as remarkable for what the complaint doesn't mention. GSU, the university and deep pocket, is not named as a defendant. Only top administrators are defendants. Also, the lawsuit seeks only injunctive and declaratory relief. As you can imagine, monetary damages in a case like this could easily break 8 figures under the harsh remedies of Section 504(c). But you can see how the plaintiff publishers are calculating how to navigate around 11th Amendment Sovereign Immunity established by a line of cases including Chavez v. Arte Publico Press. As many of us know, state institutions including state university presses cannot be sued in federal court for monetary damages. So the intriguing question to me is can the administrators, faculty and staff of state universities be sued in a suit that so obviously targets the university? As Georgia Harper points out in her Collectanea blog, individuals share state immunity when they act in an official capacity. Can individual administrators be found acting illegally under copyright vicarious liability? And thus lose immunity? We shall see. Anyone have any opinion? Marc Lindsey Copyright Specialist Washington State University
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