Texas Appeals Court Says Government Can’t Be Sued For Copyright Piracy

sandbagger writes: Photographer Jim Olive’s helicopter shot of Houston was used by the University of Houston on their website after they removed his watermark, a definite no-no particularly since the image was used for their school of business. The photographer then sent the university a bill for $41,000 — $16,000 for the usage and $25,000 for removing his copyright credit. After the matter ended up in court, the university pushed for the case to be dismissed because the public institution has sovereign immunity, which protects state government entities from a variety of lawsuits and the appeals court agreed. The matter will likely go before the Supreme Court (in Allen v. Cooper) sometime in 2020. “Even if the government sets itself up as a competitor by producing a copyrighted work, there probably is not good reason to conclude automatically that the copyright has been ‘taken,'” the three-judge panel cites in its ruling. “The copyright holder can still exclude all private competitors even as the government pirates the entirety of his work.”

“[W]e hold that the Olive’s takings claim, which is based on a single act of copyright infringement by the University, is not viable,” the ruling continues. “This opinion should not be construed as an endorsement of the University’s alleged copyright infringement, and as discussed, copyright owners can seek injunctive relief against a state actor for ongoing and prospective infringement. Instead, in the absence of authority that copyright infringement by a state actor presents a viable takings claim […] we decline to so hold.”

The National Press Photographers Association (NPPA) notes that the U.S. Congress passed the Copyright Remedy Clarification Act (CRCA) decades ago to prevent states from having governmental immunity from copyright claims, but some appeals courts have held that CRCA goes beyond Congress’ powers and have therefore struck it down as unconstitutional.

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