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“The state’s policy, the University’s policy, is to urge respect for the rights of both copyright and trademark-wholly apart from what the possibilities for legal action are,” says Richard Blumenthal, Connecticut’s attorney general. But for the moment, honor’s optional. In the words of Marybeth Peters, the nation’s Register of Copyrights, “today we find ourselves in a situation where states can infringe copyrights, patents, and trademarks with impunity.” Last year, the U.S. Supreme Court ruled in Florida Prepaid v. College Savings Bank that states’ sovereign immunity bars suit for intellectual property infringement. Berkeley intellectual property law professor Mark A. Lemley said Florida Prepaid‘s holding that states are immune from liability for infringing on intellectual property rights has “created great consternation in the intellectual property bar.” Thus, while college students feverishly download music from the Internet — with questionable legality — state universities suddenly have the power to publish textbooks on Web sites or otherwise, and not have to pay for the infringement. That’s the scenario Harvard Law professor Daniel J. Meltzer, Peters and Lemley raised in testimony before the House Judiciary Committee’s Joint Subcommittee on Intellectual Property. “Imagine that, today, various faculty members and administrators in different departments of a state university are engaged in widespread illegal duplication of copyrighted materials. What remedies are available to the copyright holders?” Meltzer asked. He said it’s still possible to get injunctions to halt the pirating, or to sue individual state employees — but without a change in the law, states aren’t liable for money losses. Meltzer suggests tying a waiver of state immunity to some lucrative federal grant program, as pioneered in South Dakota v. Dole , the 1987 U.S. Supreme Court precedent upholding the practice of conditioning highway funding on the state raising its drinking age to 21. Lewis S. Kurlantzick, an intellectual property professor at the University of Connecticut School of Law, said in an interview that this new gap in liability might cause some marginal increase in unauthorized copying, “but it won’t change the core values of the institution” to honor copyright. Those who need to buy a text this year may author one the next, Kurlantzick notes, and people still want their property rights upheld. Currently, colleges across the nation are supplementing paper textbooks with electronic material on the Internet, or on controlled college servers. At the University of Connecticut at Storrs, books on “reserve” at the library are available via computer. Professors who assemble packets of readings for courses go through the college bookstore, which obtains permissions from copyright holders. And although out-of-copyright works may be available free online, professors often prefer to have the latest translation or annotated volume, says Steve Batt, a UConn reference librarian. The college posts copyright notices above photocopying machines, and conducts seminars to inform faculty and staff of copyright issues. Madelyn Spata, the university’s educational resource division manager, obtains licenses from copyright holders directly or through clearing houses, for professors’ course packets. The school also has online reference materials, so students with ID numbers can access required reading materials.

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