658
Stevens, J., dissenting
a plaintiff might obtain in a tort suit in all 50 jurisdictions.9 See ante, at 643. But, it is particularly ironic that the Court should view this fact as support for its holding. Given that Congress had long ago pre-empted state jurisdiction over patent infringement cases, it was surely reasonable for Congress to assume that such remedies simply did not exist.10
Furthermore, it is well known that not all States have
9 To the extent that a majority of this Court finds this factor dispositive, there is hope that the Copyright Remedy Clarification Act of 1990 may be considered "appropriate" § 5 legislation. The legislative history of that Act includes many examples of copyright infringements by States—especially state universities. See Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the House Committee on the Judiciary, 101st Cong., 1st Sess., 93, 148 (1989); Hearing on S. 497 before the Subcommittee on Patents, Copyrights, and Trademarks of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 148 (1989). Perhaps most importantly, the House requested that the Register of Copyrights prepare a study, which he described in his transmittal letter as, "a factual inquiry about enforcement of copyright against state governments and about unfair copyright licensing practices, if any, with respect to state government use of copyrighted works. I have also prepared an in-depth analysis of the current state of Eleventh Amendment law and the decisions relating to copyright liability of states, including an assessment of any constitutional limitations on Congressional action. Finally, as you requested, the American Law Division of the Congressional Research Service has conducted a 50 state survey of the statutes and case law concerning waiver of state sovereign immunity." Register of Copyrights, R. Oman, Copyright Liability of States and the Eleventh Amendment (June 1988) (transmittal letter). This report contains comments from industry groups, statistics, and legal analysis relating to copyright violations, actual and potential, by States. See id., at 5, 12, 14, 93-95.
10 After the 1992 Act was passed, the Florida Supreme Court did hold that a patentee might bring some sort of "takings" claim in a state court, or might seek a legislative remedy. See Jacobs Wind Electric Co. v. Florida Dept. of Transp., 626 So. 2d 1333 (1993). Given the unambiguous text of 28 U. S. C. § 1338, there is (a) no reason why Congress could have anticipated that decision, and (b) good reason to believe a well-motivated court may have misinterpreted federal law. See Jacobs Wind, 626 So. 2d, at 1337-1338 (Harding, J., dissenting).
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