[DMCA-Activists] Re: Theft of Copyright Massachusetts House Bill 2743

[Seth Johnson]

"Jon O." wrote:
> 
> Under the US Constitution is copyright an exclusive domain of the federal
> government?  Can states criminalize conduct which is legal under federal
> copyright law?


States have the autonomy to pass their own laws regarding exclusive rights,
at least with respect to educational institutions.  This is a fact that can
play to our advantage, not disadvantage.

The S. 2031 "Intellectual Property Protection Restoration Act" was recently
introduced in the Federal legislature because the right of States to pass
their own laws in this area was recently confirmed (in some court case; I
don't remember where).  Once this was realized, it was feared that States
could grant broad freedoms to Universities with respect to exclusive
rights.  Basically, the Act was geared to protect the Bayh-Dole Act of 1980
against the States deciding to do what they pleased.  It has not passed,
near as I can tell:

> http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SN02031:@@@X

Bayh-Dole has needed to be repealed for a long time.  This Bill also needs
to be shut down.  More importantly, the autonomy of State Universities with
respect to exclusive rights policy needs to be used to our advantage.  Are
there any State legislators who might introduce a strong information freedom
bill, perhaps one that repudiates the premise of criminalizing the use of
the Internet, or of "content control" circumvention?

Below is a C-FIT alert from last April:

> http://www.interesting-people.org/archives/interesting-people/200204/msg00077.html


------ Forwarded Message
From: "K.Ellis" <address@hidden>
Date: Mon, 08 Apr 2002 15:57:01 -0400
To: David Farber <address@hidden>
Subject: On State Universities, S-2031, and Bayh-Dole

From:
Seth Johnson
Committee for Independent Technology
http://realmeasures.dyndns.org/C-FIT/Theory1.htm


Two giant constituencies -- who naturally ought to have at heart many of the
same concerns as the presently burgeoning community of citizens concerned
about Federal and international policy initiatives that affect their
technological and online freedom -- are now in the position of selling out
their legally recognized power to resist these initiatives.  These
constituencies are the sovereign American States and their Universities.

Following is a letter to Senator Leahy from the Bayh-Dole stakeholders at
numerous United States universities (University "Technology Transfer
Officers") on Leahy's Senate Bill S-2031 (The "Intellectual Property
Protection Restoration Act").

Bayh-Dole is the Act that signals the moment at which Universities in
America went from "intellectual property" to Intellectual Property,
abrogating the clear understanding that they had held of how metaphorical
and internally contradictory that phrase actually is.

Bayh-Dole undermined the Universities' mission of fostering the advancement
of general human knowledge, by authorizing universities to sell the fruits
of their research, despite the fact that it is Federally funded and
traditionally in the public domain.  Bayh-Dole authorized Universities to
enter into enormously lucrative private contracts with big-time "IP"
stakeholders such as pharmaceuticals and software companies, in which those
companies could obtain ownership of the fruits of the Federally-funded State
schools' research.

S-2031 is a ludicrous Bill now entered before Congress, specifically
designed to counter the fact that as sovereign powers, States and their
Universities have immunity against Federal claims of intellectual property
infringement.  It is plainly instigated by those who have an interest in
perpetuating the devastating effect that Bayh-Dole has had on the very
nature of American academic and scientific research.

Certain Supreme Court cases have affirmed that the States have sovereignty
such that they would be immune from charges of "intellectual property"
infringement from the Federal level.  A State can very well, if it chooses,
grant broad freedoms to its Universities in the use of copyrighted and other
materials.

The letterwriters specifically state that they are supportive of the Bill's
purpose of preventing "end runs" on the part of the States, if the Bill
would only incorporate provisions to allow individual State Universities to
grant their own waivers for themselves.  They propose that these provisions
would assure that the Federal Government could more easily obtain waivers
from the States against their asserting sovereign immunity in "intellectual
property" matters.

This Bill, and this response on the part of Technology Transfer Officers,
are vastly misguided.  While the provisions in this letter might have the
interesting effect of undermining the force of Leahy's Bill (and as a result
it would seem their recommendations may very likely be disregarded), the
position it presents nevertheless fails to address the real issues at stake.

Concerned citizens should act now to drive a wedge between the States, who
should know better, and the Feds, who have been coopting the Universities in
their mission for many years now, with little to no input on the part of the
broad populace, who are the ones most affected by shortsighted policies such
as the DMCA and other large "IP," content industry and WIPO-inspired
measures.

This circumstance places at stake one of the most powerful recourses to
which American citizens may resort against a large array of issues related
to the enforcement of "intellectual property" and the restriction of basic
Constitutional rights such as free speech and free association, as well as
of special exception clauses such as fair use.

Numerous law scholars are articulating a rationale for S-2031 on the theory
that it is not fair for States to be able to assert autonomy regarding
"intellectual property" policy.  But the truth is, America needs those who
are the supposed stewards of academic intellectual freedom to seize any
opportunity to resist and overturn attempts to make property out of the
domain of scientific facts and ideas.

The conscientious action of just a few enlightened University Officers and
spokespeople can go miles towards reversing the bribe that Bayh-Dole
instituted in 1980. Universities and their State Representatives must
register their outrage ragarding the idea of selling out their States'
"birthright," so to speak, and speak the truth in clear and uncompromising
terms about what Bayh-Dole and S-2031 really mean.

Following are 1) a snippet of an Alternet article on Bayh-Dole; 2) the
Technology Transfer Officers letter; and 3) (their proposed amended version
of) the S-2031 Bill.

On Bayh-Dole, see:
http://www.alternet.org/story.html?StoryID=9290
http://www.openinformatics.org/faq.html#bayh-dole



Seth Johnson
Committee for Independent Technology
http://realmeasures.dyndns.org/C-FIT/Theory1.htm

[CC] Counter-copyright:
http://cyber.law.harvard.edu/cc/cc.html


----


(From the Alternet article:)

Prior to the passage of the Bayh-Dole Act, patent laws strictly separated
academic research from corporate profit. If a scientist took even one dime
of money from the government, then the rights to his or her discovery
remained in the public domain. In the mid 1970s, with the economy in a
slump, and the U.S. trailing Japan in the technology revolution,
corporations began lobbying for changes in the patent laws, changes that
would hasten the transfer of technologies from the public to the private
sectors.

In 1980, Bob Dole co-sponsored a bill that gave private industry exclusive
licensing rights to any promising discoveries arising from federally funded
research. In Congressional hearings on the bill, then Commerce Secretary
Phillip Klutznick remarked that the bill was akin to "using tax money to pay
a contractor to build a road and then allowing the contractor to charge an
additional toll to those who travel the road."

Admiral Hyman Rickover added his objections, testifying that rather than
serving the public interest, the bill would: "throttle technological
development, hurt small business, stifle competition, and cost the taxpayer
plenty while promoting 'greater concentration of economic power in the hands
of large corporations'."

Nevertheless, Bayh-Dole was enacted in October 1980, and thenceforth, the
fruits of academic research passed from taxpayer funded laboratories
directly to the wallets of the pharmaceutical manufacturers.

The icing on the cake was augmentation of Bayh-Dole with the Federal
Technology Transfer Act of 1986. This law allows government researchers at
federal laboratories like the National Institutes of Health (NIH) to cut
deals with biotech and pharmaceutical firms, known as Cooperative Research
and Development Agreements, effectively privatizing all federally funded
research.

All agreements made under the Bayh-Dole Act are secret. Here's one that was
made public only when it was nipped in the bud by the NIH. In 1992, Scripps
Research Institute, of La Jolla California, a facility which receives $100
million annually from the NIH, made a deal with Sandoz, the Swiss
pharmceutical firm. Sandoz would pay Scripps $300 million over 10 years, in
return for exclusive rights to all discoveries made by Scripps.


----


(The letter, forwarded from UVentures Techno-L list,
address@hidden)

Mani Iyer (address@hidden) wrote:

 > Folks:
 > We at Louisiana State University have developed a letter
 > to send to Senators and Representatives to alert them to
 > the devastating effect that S. 2031 would have on
 > technology transfer at state universities, and to propose
 > an amendment to the bill that would make it far less
 > damaging, while still achieving the goals sought by the
 > bill's proponents.
 >
 > We invite you to use our letter as a model on which you
 > may wish to base your own letter to your state
 > Congressional delegation. Such letters are probably most
 > effective when signed by higher-ranking officials --
 > e.g., by the university president, chancellor, or both,
 > rather than by the technology transfer officer (no
 > offense intended -- I'm one myself).
 >
 > The model letter may be downloaded at:
 > http://www.lsu.edu/intellectual_property/Senate_Letter.doc
 >
 > (Please let me know if you are unable to download the model letter)
 > ---------------------------------------------------------------------
 > Uventures.com the home of Techno-L
 > Techno-L Archives are available on UVentures.com.
 > To access the searchable archives, register FREE at
http://www.uventures.com
 >
 > To subscribe, e-mail: address@hidden
 > To unsubscribe, e-mail:address@hidden
 > For additional commands, e-mail: address@hidden


----


(The letter:)
[To be Printed on Appropriate Letterhead]


April ____, 2002


Senator ________________                        Via Fed Ex _______________
Senate Office Building Washington, D.C.  20510-______

RE:     Pending State Sovereign Immunity / Intellectual Property
Bills (S. 2031, S. 1611, H.R. 3204)

Dear Senator _________:

         We write to voice our grave concern over the unintended
consequences of S. 2031, and to suggest an amendment that would resolve
these concerns while still achieving the ends sought by the bill’s sponsors.

         In 1980 Congress passed the Bayh-Dole Act, 35 U.S.C. § 200-212, to
promote technology transfer and economic development by encouraging
universities to patent inventions made with federal support, and to license
those inventions to private industry.

         The Bayh-Dole Act has worked well.  The Association of University
Technology Managers (AUTM) has reported that technology transfer in FY 1999
(conducted largely but not exclusively by universities) had added about $40
billion to the U.S. economy, supported 260,000 jobs, and helped to spawn new
businesses, industries, and markets.  AUTM said that there was strong
support for the conclusion that at least 2000 products are presently
available to the public that would never have been created in the absence of
technology transfer, development, and licensing activities by AUTM members.

         Owners of patents, copyrights, and trademarks can enforce their
rights by bringing suit against infringers.  However, the Supreme Court has
interpreted the Eleventh Amendment to grant states and some state agencies
“sovereign immunity” from such infringement actions in federal court.
Congress has previously enacted statutes attempting to abrogate state
sovereign immunity under federal intellectual property laws, but in 1999 the
Supreme Court invalidated these statutes. Florida Prepaid Postsecondary
Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999);
College Savings Bank v. Florida Prepaid Postsecondary Education Expense
Board, 527 U.S. 666 (1999).  The current status of the law, therefore, is
that states and many state agencies (including many state universities) may
sue others for infringement of state-owned intellectual property; but they
may not, in turn, be sued for damages in federal court for infringing
patents, copyrights, and federally-registered trademarks, unless the state
agrees to be sued.

         S. 2031, introduced by Senator Leahy (also S.1611 & H.R. 3204),
while intended to “level the playing field,” would annul many of the rights
associated with patents, copyrights, and trademarks owned by a state and by
state universities, such as _________.  To avoid these harsh penalties, a
state would be required to waive its sovereign immunity in suits concerning
patents, copyrights, and federally-registered trademarks.  This bill is
well-intentioned, but would have major, unintended consequences.

         An effective waiver of immunity under this legislation could only
be made by the state as a whole, not by an individual state university. 
Unless a state agreed to be sued by anyone who wished to bring a claim for
patent, copyright, or trademark infringement, that state and its agencies
would no longer be able to enforce or license intellectual property rights
effectively.  The result would be to reduce or eliminate the potential for
licensing university intellectual property rights to private industry, and
consequently to reduce or eliminate promising possibilities for economic
development.

         The pending legislation provides that a waiver of sovereign
immunity would not avoid these penalties unless the waiver were made by the
state as a whole.  For example, even if an individual state university such
as _________ were willing to waive its own sovereign immunity in response to
this legislation, that waiver would be ineffective -- it would not restore
the university’s intellectual property rights. Under the pending bill, a
waiver would not be effective unless it were made on behalf of the entire
state.

         The proposed legislation would have significant, unintended
consequences.  The law would hamper technology transfer and economic
development, activities that Congress has otherwise strongly encouraged,
especially through the highly successful, 22-year-old Bayh-Dole Act.  The
proposed law would place a state research university in the untenable
position of being a proponent in the state legislature for a waiver of
sovereign immunity that would extend to the entire state.  If a state
research university were unable to convince its legislature to consent to
any and all infringement suits against the state highway department, state
hospitals, and all other branches of state government, then that university
would effectively be shut out of technology transfer and development.  That
situation could cause highly qualified faculty members to seek employment
elsewhere.

         The proposed legislation is well-intentioned, but it is a solution
to a non-existent problem.  States have not hidden behind sovereign immunity
to trample private intellectual property rights.  A September 2001 study by
the General Accounting Office found that “few accusations of intellectual
property infringement appear to have been made against the states either
through the courts or administratively” over the last fifteen years. 
Furthermore, many such disputes are settled out-of-court in a mutually
satisfactory manner, such as by obtaining a license or reaching a monetary
settlement.  Also,  “checks and balances” operating through political
channels help to ensure that state agencies do not disregard legitimate
private rights.

         The proposed legislation would place state research universities at
a distinct disadvantage compared to private universities.  To be allowed to
continue technology transfer activities, a state university would be forced
to persuade the state legislature to enact legislation affecting the entire
state government and all its agencies.  A private university would suffer no
such impediment, because private universities could continue their
technology transfer activities without the need for any new,
politically-difficult state legislation.

         The proposed legislation would also disproportionately affect state
research universities compared to other state agencies.  State agencies
other than universities would not suffer significantly, because other state
agencies typically do not play a substantial role in the technology transfer
and development activities that would be primarily affected by the bill.

         The proposed legislation would disregard a sovereign immunity
waiver made on behalf of an individual state university.  But the law’s
impact could be made less drastic -- and the law might in fact go further
toward achieving its proponent’s goals -- if it were amended to recognize a
waiver of sovereign immunity made on behalf of a state university.  If a
university need only obtain a waiver of sovereign immunity for itself, and
not for the highway department and all other parts of the state government,
then the waivers of sovereign immunity sought by the bill’s proponents might
well be more forthcoming.  The agencies who actually participate in
intellectual property programs would waive sovereign immunity, thus putting
the players on the level playing field that the bill’s proponents seek. 
Then state universities need only take appropriate action to obtain an
immunity waiver on their own behalf, without being forced into the
impossible position of seeking a waiver that would extend to the entire
state government.

         We are enclosing a proposed amendment to S. 2031 along these
lines.  The amendment would also recognize immunity waivers made by bona
fide state universities, in addition to a waiver made by an entire state. 
The proposed exception would apply only to bona fide state universities, and
therefore would not allow a state to make an “end run” around the intention
of the legislation by placing intellectual property in the hands of another
state agency. (We understand that the possibility of such “end runs” is a
concern of the bill’s proponents.  The proposed amendment would not
recognize them.)  The amendment would also delay the effective dates by an
additional 12 months, to allow sufficient time to enact legislation (or
other appropriate form of waiver) at the state level.

         The 1980 Bayh-Dole Act has been highly successful in jump-starting
technology transfer and economic development through universities around the
country.  The pending legislation threatens to take this away, and could
also cause productive faculty members to leave state universities such as
________.  Governor ________________, and his counterparts in other states,
have encouraged economic development by using universities and
university-associated incubators to promote biotechnology and other high
technology businesses.  The effect of this bill could be to kill these
nascent efforts before they even have a chance to get off the ground.

         By contrast, if the bill were amended to recognize waivers of
sovereign immunity made by or on behalf of bona fide state universities such
as ___________, then it would not be nearly so devastating to universities,
and the sovereign immunity waivers sought by the bill’s proponents are
considerably more likely to be granted.

         Thank you for looking into this matter, and for considering the
enclosed amendment to the bill.

Very truly yours,

                                                                  Enclosure


----
(The [Proposed Revised] Bill:)
Intellectual Property Protection Restoration Act of 2002
(Introduced in the Senate)

S 2031 IS
107th CONGRESS
2d Session
S. 2031

To restore Federal remedies for infringements of intellectual property by
States, and for other purposes.

IN THE SENATE OF THE UNITED STATES
March 19, 2002

A BILL   [Proposed amendments to the bill are highlighted.]

To restore Federal remedies for infringements of intellectual property by
States, and for other purposes.

       Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

       (a) SHORT TITLE- This Act may be cited as the `Intellectual Property
Protection Restoration Act of 2002'.

       (b) REFERENCES-

(1) Any reference in this Act to the Trademark Act of 1946 shall be a
reference to the Act entitled `An Act to provide for the registration and
protection of trade-marks used in commerce, to carry out the provisions of
certain international conventions, and for other purposes', approved July 5,
1946 (15 U.S.C. 1051 et seq.).

<AMEND/>(2) Any reference in this Act to a State university shall mean a
State instrumentality that is an institution of higher education under 20
U.S.C. 1001; or a land grant college or university under the First Morrill
Act of July 2, 1862 or the Second Morrill Act of August 30, 1890; or a State
instrumentality that is a system that includes more than one such
institution of higher education.</AMEND>

SEC. 2. PURPOSES.

       The purposes of this Act are to--             (1) help eliminate the
unfair commercial advantage that States and their instrumentalities now hold
in the Federal intellectual property system because of their ability to
obtain protection under the United States patent, copyright, and trademark
laws while remaining exempt from liability for infringing the rights of
others;

             (2) promote technological innovation and artistic creation in
furtherance of the policies underlying Federal laws and international
treaties relating to intellectual property;

             (3) reaffirm the availability of prospective relief against
State officials who are violating or who threaten to violate Federal
intellectual property laws; and

             (4) abrogate State sovereign immunity in cases where States or
their instrumentalities, officers, or employees violate the United States
Constitution by infringing Federal intellectual property.

SEC. 3. INTELLECTUAL PROPERTY REMEDIES EQUALIZATION.

       (a) AMENDMENT TO PATENT LAW- Section 287 of title 35, United States
Code, is amended by adding at the end the following:

       `(d)(1) No remedies under section 284 or 289 shall be awarded in any
civil action brought under this title for infringement of a patent issued on
or after January 1, 2002 <REVISE/>2003</REVISE>, if a State or State
instrumentality is or was at any time the legal or beneficial owner of such
patent, except upon proof that--

             `(A)

(1) on or before the date the infringement commenced or January 1, 2004
2005, whichever is later, the State has waived its immunity, under the
eleventh amendment of the United States Constitution and under any other
doctrine of sovereign immunity, from suit in Federal court brought against
the State or any of its instrumentalities, for any infringement of
intellectual property protected under Federal law; or

<AMEND/>(2) if a State university is or was at any time the legal or
beneficial owner of such patent, then on or before the date the infringement
commenced or January 1, 2005, whichever is later, immunity has been waived
by or on behalf of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against that State university,
for any infringement of intellectual property protected under Federal
law;</AMEND>

and

             `(B) such waiver was made in accordance with the constitution
and laws of the State, and remains effective.

       `(2) The limitation on remedies under paragraph (1) shall not apply
with respect to a patent if--

             `(A) the limitation would materially and adversely affect a
legitimate contract-based expectation in existence before January 1, 2002
<REVISE/>2003</REVISE>; or

             `(B) the party seeking remedies was a bona fide purchaser for
value of the patent, and, at the time of the purchase, did not know and was
reasonably without cause to believe that a State or State instrumentality
was once the legal or beneficial owner of the patent.

       `(3) The limitation on remedies under paragraph (1) may be raised at
any point in a proceeding, through the conclusion of the action. If raised
before January 1, 2004 2005, the court may stay the proceeding for a
reasonable time, but not later than January 1, 2004 2005, to afford the
State an opportunity to waive its immunity as provided in paragraph (1).'.

       (b) AMENDMENT TO COPYRIGHT LAW- Section 504 of title 17, United
States Code, is amended by adding at the end the following:

       `(e) LIMITATION ON REMEDIES IN CERTAIN CASES-

             `(1) No remedies under this section shall be awarded in any
civil action brought under this title for infringement of an exclusive right
in a work created on or after January 1, 2002 <REVISE/>2003</REVISE>, if a
State or State instrumentality is or was at any time the legal or beneficial
owner of such right, except upon proof that--

                   `(A)

(1) on or before the date the infringement commenced or January 1, 2004
2005, whichever is later, the State has waived its immunity, under the
eleventh amendment of the United States Constitution and under any other
doctrine of sovereign immunity, from suit in Federal court brought against
the State or any of its instrumentalities, for any infringement of
intellectual property protected under Federal law; or

<AMEND/>(2) if a State university is or was at any time the legal or
beneficial owner of such patent, then on or before the date the infringement
commenced or January 1, 2005, whichever is later, immunity has been waived
by or on behalf of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against that State university,
for any infringement of intellectual property protected under Federal
law;</AMEND>

and

             `(B) such waiver was made in accordance with the constitution
and laws of the State, and remains effective.

             `(2) The limitation on remedies under paragraph (1) shall not
apply with respect to an exclusive right if--

                   `(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before January 1, 2002
<REVISE/>2003</REVISE>; or

                   `(B) the party seeking remedies was a bona fide purchaser
for value of the exclusive right, and, at the time of the purchase, did not
know and was reasonably withut cause to believe that a State or State
instrumentality was once the legal or beneficial owner of the right.

             `(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion of the action.
If raised before January 1, 2004 <REVISE/>2005</REVISE>, the court may stay
the proceeding for a reasonable time, but not later than January 1, 2004
<REVISE/>2005</REVISE>, to afford the State an opportunity to waive its
immunity as provided in paragraph (1).'.

       (c) AMENDMENT TO TRADEMARK LAW- Section 35 of the Trademark Act of
1946 (15 U.S.C. 1117) is amended by adding at the end the following:

       `(e) LIMITATION ON REMEDIES IN CERTAIN CASES-

             `(1) No remedies under this section shall be awarded in any
civil action arising under this Act for a violation of any right of the
registrant of a mark registered in the Patent and Trademark Office on or
after January 1, 2002 <REVISE/>2003</REVISE>, or any right of the owner of a
mark first used in commerce on or after January 1, 2002
<REVISE/>2003</REVISE>, if a State or State instrumentality is or was at any
time the legal or beneficial owner of such right, except upon proof that--

                   `(A)

(1) on or before the date the violation commenced or January 1, 2004 2005,
whichever is later, the State has waived its immunity, under the eleventh
amendment of the United States Constitution and under any other doctrine of
sovereign immunity, from suit in Federal court brought against the State or
any of its instrumentalities, for any infringement of intellectual property
protected under Federal law; or

<AMEND/>(2) if a State university is or was at any time the legal or
beneficial owner of such patent, then on or before the date the infringement
commenced or January 1, 2005, whichever is later, immunity has been waived
by or on behalf of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against that State university,
for any infringement of intellectual property protected under Federal
law;</AMEND>

and

             `(B) such waiver was made in accordance with the constitution
and laws of the State, and remains effective.

             `(2) The limitation on remedies under paragraph (1) shall not
apply with respect to a right of the registrant or owner of a mark if--

                   `(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before January 1, 2002
<REVISE/>2003</REVISE>; or

                   `(B) the party seeking remedies was a bona fide purchaser
for value of the right, and, at the time of the purchase, did not know and
was reasonably without cause to believe that a State or State
instrumentality was once the legal or beneficial owner of the right.

             `(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion of the action.
If raised before January 1, 2004 <REVISE/>2005</REVISE>, the court may stay
the proceeding for a reasonable time, but not later than January 1, 2004
<REVISE/>2005</REVISE>, to afford the State an opportunity to waive its
immunity as provided in paragraph (1).'.

       (d) TECHNICAL AND CONFORMING AMENDMENTS-

             (1) AMENDMENTS TO PATENT LAW-

                   (A) IN GENERAL- Section 296 of title 35, United States
Code, is repealed.

                   (B) TABLE OF SECTIONS- The table of sections for chapter
29 of title 35, United States Code, is amended by striking the item relating
to section 296.

             (2) AMENDMENTS TO COPYRIGHT LAW-

                   (A) IN GENERAL- Section 511 of title 17, United States
Code, is repealed.

                   (B) TABLE OF SECTIONS- The table of sections for chapter
5 of title 17, United States Code, is amended by striking the item relating
to section 511.

             (3) AMENDMENTS TO TRADEMARK LAW- Section 40 of the Trademark
Act of 1946 (15 U.S.C. 1122) is amended--

                   (A) by striking subsection (b);

                   (B) in subsection (c), by striking `or (b)' after
`subsection (a)'; and

                   (C) by redesignating subsection (c) as subsection (b).

SEC. 4. CLARIFICATION OF REMEDIES AVAILABLE FOR STATUTORY VIOLATIONS BY
STATE OFFICERS AND EMPLOYEES.

       In any action against an officer or employee of a State or State
instrumentality for any violation of any of the provisions of title 17 or
35, United States Code, the Trademark Act of 1946, or the Plant Variety
Protection Act (7 U.S.C. 2321 et seq.), remedies shall be available against
the officer or employee in the same manner and to the same extent as such
remedies are available in an action against a private individual under like
circumstances. Such remedies may include monetary damages assessed against
the officer or employee, declaratory and injunctive relief, costs, attorney
fees, and destruction of infringing articles, as provided under the
applicable Federal statute.

SEC. 5. LIABILITY OF STATES FOR CONSTITUTIONAL VIOLATIONS INVOLVING
INTELLECTUAL PROPERTY.

       (a) DUE PROCESS VIOLATIONS- Any State or State instrumentality that
violates any of the exclusive rights of a patent owner under title 35,
United States Code, of a copyright owner, author, or owner of a mask work or
original design under title 17, United States Code, of an owner or
registrant of a mark used in commerce or registered in the Patent and
Trademark Office under the Trademark Act of 1946, or of an owner of a
protected plant variety under the Plant Variety Protection Act (7 U.S.C.
2321 et seq.), in a manner that deprives any person of property in violation
of the fourteenth amendment of the United States Constitution, shall be
liable to the party injured in a civil action in Federal court for
compensation for the harm caused by such violation.

       (b) TAKINGS VIOLATIONS-

             (1) IN GENERAL- Any State or State instrumentality that
violates any of the exclusive rights of a patent owner under title 35,
United States Code, of a copyright owner, author, or owner of a mask work or
original design under title 17, United States Code, of an owner or
registrant of a mark used in commerce or registered in the Patent and
Trademark Office under the Trademark Act of 1946, or of an owner of a
protected plant variety under the Plant Variety Protection Act (7 U.S.C.
2321 et seq.), in a manner that takes property in violation of the fifth and
fourteenth amendments of the United States Constitution, shall be liable to
the party injured in a civil action in Federal court for compensation for
the harm caused by such violation.

             (2) EFFECT ON OTHER RELIEF- Nothing in this subsection shall
prevent or affect the ability of a party to obtain declaratory or injunctive
relief under section 4 of this Act or otherwise.

       (c) COMPENSATION- Compensation under subsection (a) or (b)--

             (1) may include actual damages, profits, statutory damages,
interest, costs, expert witness fees, and attorney fees, as set forth in the
appropriate provisions of title 17 or 35, United States Code, the Trademark
Act of 1946, and the Plant Variety Protection Act; and

             (2) may not include an award of treble or enhanced damages
under section 284 of title 35, United States Code, section 504(d) of title
17, United States Code, section 35(b) of the Trademark Act of 1946 (15
U.S.C. 1117 (b)), and section 124(b) of the Plant Variety Protection Act (7
U.S.C. 2564(b)).

       (d) BURDEN OF PROOF- In any action under subsection (a) or
(b)--             (1) with respect to any matter that would have to be
proved if the action were an action for infringement brought under the
applicable Federal statute, the burden of proof shall be the same as if the
action were brought under such statute; and

             (2) with respect to all other matters, including whether the
State provides an adequate remedy for any deprivation of property proved by
the injured party under subsection (a), the burden of proof shall be upon
the State or State instrumentality.

       (e) EFFECTIVE DATE- This section shall apply to violations that occur
on or after the date of enactment of this Act.

SEC. 6. RULES OF CONSTRUCTION.

       (a) JURISDICTION- The district courts shall have original
jurisdiction of any action arising under this Act under section 1338 of
title 28, United States Code. (b) BROAD CONSTRUCTION- This Act shall be
construed in favor of a broad protection of intellectual property, to the
maximum extent permitted by the United States Constitution.

       (c) SEVERABILITY- If any provision of this Act or any application of
such provision to any person or circumstance is held to be unconstitutional,
the remainder of this Act and the application of the provision to any other
person or circumstance shall not be affected.



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