Home Civil Law State Government’s Alleged Copyright Infringement Wasn’t a “Taking”-Jim Olive v. University of...

State Government’s Alleged Copyright Infringement Wasn’t a “Taking”-Jim Olive v. University of Houston (Guest Blog Post) – Technology & Marketing Law Blog


by visitor blogger Tyler Ochoa

Last week, the Texas Supreme Court held that “the violation of a copyright, without more, is not a taking of the copyright,” and affirmed the dismissal of Olive’s inverse condemnation declare.

UH allegedly downloaded Olive’s {photograph} from his web site, eliminated the CMI, and posted it to its web site. When Olive found the elimination years later, UH complied along with his demand to stop and desist, however he sued for damages anyway. Because he couldn’t sue in federal court docket (under Allen v. Cooper, the State has sovereign immunity), he sued in state court docket for inverse condemnation. (Texas has waived its sovereign immunity for “takings” claims.)

The court docket notes that students disagree whether or not copyright ought to be treated as “property” for Fifth Amendment functions; nevertheless it assumes arguendo that it’s treated as property. A “taking” could be a physical taking or a regulatory taking. Either manner, to find out whether or not it’s a “taking,” a court docket ordinarily conducts a fact-specific “ad hoc” inquiry utilizing a multi-factor balancing check. But everlasting physical occupation is a “per se” taking with no multi-factor evaluation.

Olive cited Horne v. Dep’t of Agriculture, 576 U.S. 350 (2017), for the proposition that “takings” regulation doesn’t distinguish forms of property; however the Texas Supreme Court says that in context, the Supreme Court was referring to non-public property versus actual property. Intangible property is probably completely different. The precedent is Ruckelshaus v. Monsanto, 467 U.S. 986 (1984), utilizing multi-factor “ad hoc” evaluation to find out that commerce secrets and techniques have been “property” topic to a taking.

The court docket notes that the federal government didn’t take “possession and control” of the copyright, neither is the copyright “physically occupied” as a result of it’s intangible. A “per se” violation could be taking the whole bundle of sticks, not only one strand within the bundle. The copyright nonetheless has worth: the appropriate to exclude others (non-state actors) from reproducing the work, and the appropriate to license its use. The copyright proprietor can nonetheless switch the copyright to others for compensation.

Thus, “[a]llegations of copyright infringement assert a violation of the owner’s copyright, but not its confiscation, and therefore factual allegations of an infringement do not alone allege a taking.” Because there isn’t any taking, Texas retains its sovereign immunity, and the case was correctly dismissed.

Case quotation: Jim Olive Photography v. University of Houston System, No. 19-0605 (Tex. Supreme Ct. June 18, 2021)


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