©ollectanea

Bill Patry draws our attention to a copyright case in the 9th Circuit's Southern District of California that addresses the liability of individuals in their individual capacity for infringement of copyright: The Patry Copyright Blog: State Sovereign Immunity and State Employees. His commentary, and the commentary to which he points at the Stanford Fair Use blog, both make the distinction which can be sort of confusing, that even though sovereign immunity protects individuals acting in their official capacity, when they have acted in a way that is illegal, they are going to get stripped of the character of "acting within official capacity," Basically, you can't be acting officially if you are breaking the law. It can't be the official act of the state to break the law. Isn't logic great?

So, the professor who was hired by his university to create a report takes the rap as the university pleads out (sovereign immunity). Bill and I don't see eye to eye on sovereign immunity (quite naturally as I've represented a state institution for the last 17 years and I'm pretty sensitive to the state's position on this matter), but I guess I do feel rather badly about the result in this case. It would be one thing if the faculty member were sort of rogue, acting on his own, But the university hired him to do this and directed him to make his report like the earlier one (that he is now alleged to have copied). There are all sorts of interesting questions in here about the role of education in risk management, about the level of understanding of copyright law among a university's top administrators, and about individual responsibility to say no to requests that we might question on legal grounds. Gives us all a lot to think about.