Re: Georgia State University Lawsuit

[Kevin L Smith <kevin.l.smith@xxxxxxxx>]

As I understand the Ex parte Young exception to sovereign immunity, it 
allows suit against individual officials of a state agency in their 
official capacity if the suit seeks only injunctive relief to end a 
continuing violation of federal law.  It looks to me that the GSU suit is 
structure to take advantage of this exception.  The question I find 
interesting is how far such a suit will be allowed to impinge on state 
control over its money.  A permanent injunction would, in all probability, 
force the state to spend many thousands to license permissions.  In 
addition, the suit seeks attorney's fees and costs.  So the question is 
whether an equitable exception to sovereign immunity can be used to 
actually let individuals or corporations get at the state treasury, which 
is a large part of what the constitutional doctrine is intended to 
prevent.  The court could, of course, allow the case to go forward under 
the exception and then shape relief, if plaintiffs won, in some way that 
would protect the taxpayers of Georgia.

Kevin

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@xxxxxxxx
http://library.duke.edu/blogs/scholcomm/



"Lindsey, S Marc" <lindseym@xxxxxxx> 
04/17/2008 10:21 PM

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Subject
Georgia State University Lawsuit






  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