In recent years, a variety of court cases have seemed to say that state governments (including agencies of state governments, such as state universities) cannot be sued in federal courts for patent, copyright, and trademark infringement, often citing the Eleventh Amendment that no state may be held liable in legal proceedings in federal court--an issue of state sovereignty. Since copyright is litigated only at the federal level, this is a problem for copyright holders. While some courts agree that language in the Fourteenth Amendment means that a state’s immunity does not extend to patent claims, a recent 1999 Supreme Court decision (College Savings Bank v. Florida) held that the state is protected from both patent and trademark claims.

The authors do a fine job of reviewing the history and meaning of the decisions and, in particular, why state agencies are really not free to infringe others’ intellectual property claims. For example, while the state agency might not be prosecutable for infringing acts, the state employees performing the infringing act might be prosecutable. This warning goes beyond the ethics of infringing someone else’s rights, whether or not it is illegal to do so. So there still is risk. As the authors put it, “For now, however, existing cases do indicate that state colleges and universities may have the benefit of ‘some’ immunity from ‘some’ consequences of ‘some’ copyright infringements.” Indeed, with state universities becoming serious commercial exploiters of intellectual property (including copyrighted teaching materials and patents on their research activities), if they want good relationships with private-sector owners of intellectual property, it will be in their best interests to respect others’ rights.

It is likely that Congress will introduce legislation in 2000 to circumvent the apparent immunity states have for intellectual property infringement, especially for patent issues.