Tuesday, April 14, 2015
Peter J. Karol, New England Law, Boston, has published Fair Use, Meet Ex parte Young at 89 BNA's Patent Trademark and Copyright Journal 689 (2015). Here is the abstract.
This article explores a critical, but generally undiscussed, aspect of the Eleventh Circuit’s recent decision in the electronic course pack fair use case, Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014). Because Defendants are officials of a state university, the entire copyright litigation has been conducted through the prism of Ex parte Young, an exception to the usual bar created by Eleventh Amendment sovereign immunity. The article observes and explores the tensions between Ex parte Young, a narrow and prospective doctrine of constitutional federalism that by design is focused only on preventing future violations of federal law, and the appellate court’s fair use opinion, which repeatedly insists on treating fair use inquiries retrospectively as particularized incidents in the past. It critiques the appellate court’s failure to directly address this tension, and questions the authority of the fair use holding as general precedent due to the limitations posed by Ex parte Young.
Download the article from SSRN at the link.