Basically, this ruling has all sort of nasty implications. In other words, if I follow the instructions of my boss (the university), I am guilty because I could not be acting as an official agent of the university ( my boss, who has immunity under the law).
From the The Chronicle: Daily News Blog, April 16, 2008:
It’s a case that has some copyright scholars scratching their heads. A judge exonerates a university that is accused of infringing the copyright of a company’s research report. But the judge rules that an employee of the university might be culpable of the same activity.
The case is Marketing Information Masters, Inc. v. The Board of Trustees of the California State University System. In it, the market-research company accuses the California State University system and one of its lecturers, Robert A. Rauch, of duplicating the company’s work when he created a report analyzing the financial impact of a San Diego State University football game, the 2004 Pacific Life Holiday Bowl.
The university had asked Mr. Rauch, who also is director of the university’s Center for Hospitality and Tourism Research, to create the report. (For prior Holiday Bowls, the market-research company had provided the university with the reports.)
Judge John A. Houston, of the U.S. District Court in San Diego, sided with the university. In a ruling issued in February he stated that the university was immune from claims of infringement because as a state entity it is shielded from liability by sovereign immunity. The judge also said Mr. Rauch was immune from liability as a university official who created the report.
But here’s the kicker: Mr. Rauch could still be liable for infringement acting as an “individual” who created the report, the judge said. The marketing company’s rationale is that if Mr. Rauch violated the law, he could not be acting as an official agent of the university.
“Isn’t logic great?” Georgia K. Harper sarcastically posits on her blog, ©ollectanea. Ms. Harper, a copyright lawyer at the Center for Intellectual Property at University of Maryland University College, says Mr. Rauch seems to be taking the fall for the university.
“I guess I do feel rather badly about the result in this case,” she writes. “It would be one thing if the faculty member were sort of rogue, acting on his own. But the university hired him to do this and directed him to make his report like the earlier one.”
As a result of the judge’s ruling, the market-research company is moving ahead with its suit against Mr. Rauch. —Andrea L. Foster