December 01, 2019 Feature

The Changing Landscape of Copyright Infringement and Sovereign Immunity

Cayce Myers

©2019. Published in Landslide, Vol. 12, No. 2, November/December 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Copyright and sovereign immunity may be one of the most important issues decided by the U.S. Supreme Court in the October 2019 term. A case out of the U.S. Court of Appeals for the Fourth Circuit, Allen v. Cooper, has all the ingredients for an interesting case: underwater exploration, media, and, interestingly enough, a pirate ship.1 However, the implications of Allen v. Cooper are much more meaningful to intellectual property (IP) law, and depending on how the U.S. Supreme Court decides the case, the waiver of sovereign immunity given by the Copyright Remedy Clarification Act of 1990 (CRCA) could be held unconstitutional.

Copyright infringement and sovereign immunity has uniquely evolved over the past two decades. While the CRCA remains federal law, numerous appellate and district courts hold that the CRCA unconstitutionally abrogates state sovereign immunity.2 As the U.S. Supreme Court’s decision in Florida Prepaid v. College Savings Bank (Florida Prepaid I) showed, the waiver of a state’s sovereign immunity is a complex issue that hinges on multiple areas of constitutional law, including Article I power of Congress, section 5 of the Fourteenth Amendment, and precedent involving state waiver of sovereign immunity when violating federal law.3 The concept of sovereign immunity is also something that is not as settled as one may think. Eleventh Amendment analysis shows larger disagreement with what sovereign immunity actually means. As Justice John Paul Stevens wrote in Pennsylvania v. Union Gas Co., there are “two Eleventh Amendments,” the first of which is found in the U.S. Constitution and the second in the jurisprudence of the U.S. Supreme Court.4

This article addresses the underling law of sovereign immunity waivers for copyright cases specifically analyzing the CRCA, detailing constitutional challenges to the CRCA, contractual waivers of immunity, and the potential implications of Allen v. Cooper. From this analysis, this article will show how sovereign immunity affects copyright infringement claims when dealing with state defendants.

Copyright and Sovereign Immunity

Sovereign immunity in copyright cases has a relatively recent legal history beginning only in the 1960s and gaining major attention from courts in the 1990s. The biggest issue in sovereign immunity for copyright is whether a state entity can be sued in federal court for infringement. Because federal, not state, copyright law is the basis for most infringement claims, abrogation of sovereign immunity is necessary for most plaintiffs to recover damages. However, as courts have grappled with plaintiff access to federal courts with state defendants, the issues involved are a complex analysis of Article I congressional power, the Eleventh Amendment, the Fourteenth Amendment, and copyright owners’ rights.

The first copyright infringement suit dismissed because of sovereign immunity was in the U.S. Court of Appeals for the Eighth Circuit in 1962.5 This is not surprising given that even today state copyright infringement is relatively uncommon, and lawsuits arising out of state violations of copyright are largely outnumbered by infringement by private parties. Later in 1979, the U.S. Court of Appeals for the Ninth Circuit held that a state could be sued for copyright infringement in Mills Music, Inc. v. Arizona.6 In that case, the Ninth Circuit held that inherent in the copyright and patent clause and the Copyright Act is a waiver of sovereign immunity.7 However, that view was exclusive to the Ninth Circuit, and federal copyright suits against states were still barred by the Eleventh Amendment in the other circuits.

That all changed in 1990 when Congress took an active role in abrogating sovereign immunity for IP claims passing the CRCA, the Trademark Remedy Clarification Act (TRCA), and the Patent and Plant Variety Protection Remedy Clarification Act (PRCA).8 Specifically, the CRCA amended the Copyright Act to state:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.9

These three acts waived sovereign immunity for states accused of IP infringement using Article I power. However, the constitutionality of these acts, specifically the ability of Congress to abrogate state sovereign immunity under Article I power, became an issue when the U.S. Supreme Court held in 1996 in Seminole Tribe of Florida v. Florida that Article I power had limitations that did not include the ability to abrogate sovereign immunity of states under the Eleventh Amendment.10 As a result, the sovereign immunity waivers in the PRCA and TRCA were found to be unconstitutional.11

Despite the striking down of the abrogation of sovereign immunity for trademark and patent infringement claims, the U.S. Supreme Court has not, until this next term, heard a case involving the abrogation of sovereign immunity in copyright infringement suits. However, the CRCA has faced challenges in federal appellate courts, with the Fifth Circuit, Eleventh Circuit, and now the Fourth Circuit holding the abrogation of state sovereign immunity in the CRCA unconstitutional.12 Even though the U.S. Supreme Court has never held the CRCA unconstitutional, it did somewhat show its view of abrogation in 1996 when it remanded a Fifth Circuit case, Chavez v. Arte Publico Press, to be reconsidered in light of the holding in Seminole Tribe.13 Following the precedent in Chavez, the Eleventh Circuit also held the CRCA unconstitutional because the abrogation was not validly exercised by Congress under Article I of the U.S. Constitution. In fact, circuits seem uniform in the unconstitutionality of the CRCA’s abrogation, and the U.S. Department of Justice has consistently not defended the CRCA since the Clinton administration.14 Many federal courts have questioned the constitutionality of the CRCA. These questions center around congressional power and the constitutional issues surrounding abrogation. As of 2019, three federal circuit courts and numerous district courts have held the CRCA unconstitutional.15

At the core of the waiver of sovereign immunity is whether Congress has authority to abrogate sovereign immunity rights. In the CRCA, wavier occurred presumably because of Article I power of Congress. However, Article I power of Congress is not absolute, and certain preconditions must be met. The U.S. Supreme Court established a two-part requirement for abrogation: (1) Congress must “unequivocally” express its intent to abrogate the immunity, and (2) this expression must be based on a “valid exercise” of power.16 The holding in Seminole Tribe and its progeny makes a clear statement about congressional use of Article I for abrogation of Eleventh Amendment sovereign immunity—that is, Congress cannot rely on Article I power to abrogate sovereign immunity.17

A second argument concerning abrogation of sovereign immunity is that immunity can be abrogated under section 5 power of the Fourteenth Amendment, which allows Congress to enforce the Fourteenth Amendment by enacting laws allowing for suits against states in federal court.18 The U.S. Supreme Court interpreted section 5 to allow suits against states for violations of the Fourteenth Amendment, but only if Congress is explicitly relying on section 5 authority and the exercise of that power is in “congruence and proportionality” to the Fourteenth Amendment violation.19 In Florida Prepaid I, the justification of waiver of sovereign immunity under section 5 was rejected because there was no evidence that there was a pattern of unconstitutional acts by the state and infringement was not considered a violation of due process.20 Part of the analysis of this provision also hinges on the legislative intent of the underlying law. In all three IP acts waiving sovereign immunity—the CRCA, PRCA, and TRCA—Congress did not explicitly use section 5 of the Fourteenth Amendment to justify passage. Instead, the trio of laws were passed under the auspice of the Article I power of the U.S. Constitution. The net result of Article I and Fourteenth Amendment analysis is that there is a strong argument, and several federal circuit courts agree, that the CRCA’s waiver of sovereign immunity is inconsistent with Article I power and cannot be justified under section 5 of the Fourteenth Amendment either.

The Eleventh Amendment: One Amendment, Two Interpretations

To understand the implications of the CRCA and the abrogation of sovereign immunity, it is important to note there is a larger debate surrounding the scope of immunity given by the Eleventh Amendment. This issue of what exactly is sovereign immunity under the Eleventh Amendment is a major issue, and one that the district court in Allen v. Cooper devoted much of its decision to discussing.

As Justice Stevens argued, there are two Eleventh Amendments that have developed since the writing of the U.S. Constitution. His observation is rooted in the idea that sovereign immunity was meant to bar suits in only limited situations with very specific plaintiffs. However, as the U.S. Supreme Court’s jurisprudence shows, the idea of sovereign immunity has expanded to many types of suits arguably beyond the scope of the framers’ intent. His argument is that the first interpretation is from the plain text of the amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”21

Then, there is the second Eleventh Amendment that has developed since the late nineteenth century. In Hans v. Louisiana, decided in 1890, the U.S. Supreme Court held that Eleventh Amendment sovereign immunity is broad and includes federal question cases in federal court.22 This idea was reinforced by Ex parte Young, a 1908 case in which the U.S. Supreme Court held that citizens could sue a state official in federal court, despite sovereign immunity, when the official violated the U.S. Constitution.23 In reading the text of the Eleventh Amendment, some legal scholars and court argue that the amendment was only supposed to bar suits by noncitizens against a state in federal court based on diversity jurisdiction; this amendment served a practical function as a limitation placed on diversity lawsuits outlined in Article III of the U.S. Constitution.24 They argue that Hans v. Louisiana went beyond that narrow scope of Eleventh Amendment immunity. That decision has a host of critics within the legal academic and judicial community, with Justice Brennan pointing out that during the ratification debates federal question lawsuits against states were not “inconceivable” to the framers.25

Other Ways to Waive Sovereign Immunity in Copyright Litigation

Sovereign immunity waivers also occur in situations outside of specific federal statutes. One way is express waiver of immunity by a state.26 However, for sovereign immunity to be waived in copyright litigation, there are several fact-specific instances that allow for waiver. The threshold for these waivers to be met is very stringent, and language and facts that strongly suggest waiver can still not meet the high threshold set forth by the U.S. Supreme Court.

Contractual waiver of sovereign immunity is something that is arguably the most obvious form of waiver because it is set out explicitly by the parties. However, as with all contracts language matters a lot, and the U.S. Supreme Court has held that waivers of immunity have to be explicit and meet a very high threshold in which the state expressly waives immunity.27 Recognizing the importance of the power of immunity, the U.S. Supreme Court has held:

[B]ecause the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States, this Court consistently has held that these exceptions apply only when certain specific conditions are met. Thus, we have held that a State will be deemed to have waived its immunity “only where stated ‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’”28

However, express waiver of sovereign immunity can occur, and the concept of waiver by a state has been established law for over a century.29 The contractual language must include an express waiver, and not merely a general agreement to be sued even if the state agrees to suit in its own court.30 Broad language, such as an agreement to suit “in any court of competent jurisdiction” has been found to not waive Eleventh Amendment sovereign immunity.31 As Justice Rehnquist wrote in Edelman v. Jordan: “In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’”32 As Edelman and its progeny show, the express waiver of sovereign immunity requires more than merely agreeing to be sued or being subject to legal remedy. In a contractual agreement with the state, be it for determining IP ownership or something else, the contract must specifically and deliberately abrogate sovereign immunity in order for a plaintiff to bring suit in federal court.

Another way sovereign immunity under the Eleventh Amendment can be abrogated is when state officials acting in their official capacity deliberately violate federal law. This type of abrogation has a long history dating back to the 1908 U.S. Supreme Court case Ex parte Young.33 This type of litigation is rooted in the supremacy clause, and it allows for federal suit of state officials in order to enforce their adherence to federal law.34 This removal of sovereign immunity is very specific, however, requiring that the violation of federal law be ongoing at the time of the suit, meaning that the remedy sought is injunctive relief, not damages for past acts. In a copyright infringement suit, this would require ongoing infringement at the time of the lawsuit, not the mere threat of potential infringement. Moreover, because of its limitations, relief under Ex parte Young would not make many plaintiffs whole for infringement.35

Allen v. Cooper: A Constellation of Copyright and Sovereign Immunity Issues

Allen v. Cooper involves an analysis of all of the sovereign immunity issues surrounding the CRCA: Article I power, section 5 of the Fourteenth Amendment, express waiver, and Ex parte Young. In this case, the plaintiffs, Frederick Allen and Nautilus Productions, made photographs and videos of the eighteenth century shipwreck off the coast of Beaufort, North Carolina, known as Queen Anne’s Revenge, the infamous ship captured by pirate Blackbeard.36 Allen and Nautilus received 13 registered copyrights for their content, with each copyright being a year’s worth of footage. North Carolina began publishing this content online through the state’s Department of Natural and Cultural Resources.37 In 2013, Allen and Nautilus sued for infringement and eventually entered into an agreement in which the state paid $15,000 for past use, but did not admit to any infringement. However, after the agreement, North Carolina continued to use the copyrighted content. Allen and Nautilus eventually sued the state for copyright infringement, claiming that the state continued to infringe after the agreement and passed a law that essentially immunized it from any lawsuit involving copyright infringement of shipwrecks.38

In response, North Carolina claimed that the lawsuit was barred by the Eleventh Amendment of the U.S. Constitution, and that the state enjoyed qualified immunity from such infringement suits. The U.S. District Court for the Eastern District of North Carolina held that the state in this case did not waive its Eleventh Amendment immunity to be sued when it entered into an agreement with Allen or Nautilus. The court pointed out that in a series of cases, the waiver of immunity follows a “stringent” standard that is rarely met.39 The district court also heavily criticized the Eleventh Amendment jurisprudence post-Hans, citing that the long duration of the broad Eleventh Amendment interpretation was not enough of a reason to continue with what it viewed as a bad interpretation. However, it found that under the CRCA, Congress waived sovereign immunity of states in copyright infringement suits pursuant to its power under Article I.

The Fourth Circuit reversed the district court, holding that the CRCA had improperly waived sovereign immunity for states. Specifically, the Fourth Circuit held that Congress inappropriately abrogated sovereign immunity for state copyright infringement because post-Florida Prepaid Article I power of Congress did not exist to provide such waivers.40 The court continued holding that sovereign immunity could not be waived under section 5 of the Fourteenth Amendment because that power is only proper when Congress passes a law explicitly for the purpose of providing legal redress of continual Fourteenth Amendment violations.41 This was not established by the legislative record of the CRCA, nor did it appear from the legislative record that the law was passed because of widespread infringement. Last, the Fourth Circuit held that Ex parte Young did not provide for a waiver either, because that precedent requires ongoing violations of federal law.42 In Allen v. Cooper, the alleged infringement was not ongoing, and therefore waiver could not take place.43 The case was appealed to the U.S. Supreme Court, and was granted certiorari for the October 2019 term.44 Oral arguments are set for November 5, 2019.

Future Issues in Sovereign Immunity in IP

The future of the CRCA is unknown, but looking at the cases and the status of Eleventh Amendment abrogation, it seems likely that sovereign immunity for state copyright infringement will remain in place. After all, currently sovereign immunity is still enjoyed by state defendants in many federal jurisdictions despite the abrogation given by Congress in 1990. This leads to the obvious question of what can plaintiffs do when faced with copyright infringement by a state? One option is to bring a lawsuit under state copyright law in state court—something that the Eleventh Amendment does allow. However, because most copyright claims arise under federal, not state, law, this seems to be a limiting course of action. Additionally, suits against state officials under Ex parte Young equally provide limited results because the relief will only be injunctive and not for past damages. Perhaps as IP scholar Eugene Volokh suggested in light of Florida Prepaid, plaintiffs could sue in state court under inverse condemnation theory.45 Conversely, if the CRCA’s abrogation of sovereign immunity is upheld, new questions about sovereign immunity and patent and trademark infringement should follow. A decision supporting abrogation of sovereign immunity, under either Article I or the Fourteenth Amendment, would overturn three circuits’ view of the CRCA along with numerous federal district courts. However, the number of lawsuits that would be brought in this scenario is difficult to tell, especially because state copyright infringement is relatively uncommon.

Despite these likely changes in the law, attorneys should remember three important things when dealing with copyright infringement by states: contractual waiver of sovereign immunity must be explicit and precise waiver should be stated; suing state defendants under Ex parte Young provides limited relief; and the future of sovereign immunity abrogation for copyright infringement will change one way or another by 2020.

Endnotes

1. 895 F.3d 337 (4th Cir. 2018).

2. See, e.g., id. at 347; Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1314 (11th Cir. 2011); Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th Cir. 2000); Flack v. Citizens Mem’l Hosp., No. 6:18-cv-3236, 2019 WL 108128, at *3 (W.D. Mo. Mar. 7, 2019); Reiner v. Canale, 301 F. Supp. 3d 727, 749 (E.D. Mich. 2018); Campinha-Bacote v. Regents of the Univ. of Mich., No. 1:15-cv-330, 2016 WL 2230408, at *3 (S.D. Ohio Jan. 19, 2016); Issaenko v. Univ. of Minn., 57 F. Supp. 3d 985, 1007–08 (D. Minn. 2014); Coyle v. Univ. of Ky., 2 F. Supp. 3d 1014, 1017–19 (E.D. Ky. 2014); Whipple v. Utah, No. 10-811, 2011 WL 4368568, at *20 (D. Utah Aug. 25, 2011); Jacobs v. Memphis Convention & Visitors Bureau, 710 F. Supp. 2d 663, 669 (W.D. Tenn. 2010); Romero v. Cal. Dep’t of Transp., No. 08-8047, 2009 WL 650629, at *3–5 (C.D. Cal. Mar. 12, 2009); Mktg. Info. Masters, Inc. v. Bd. of Trs. of the Cal. State Univ. Sys., 552 F. Supp. 2d 1088, 1092 (S.D. Cal. 2008); InfoMath, Inc. v. Univ. of Ark., 633 F. Supp. 2d 674, 680–81 (E.D. Ark. 2007); De Romero v. Inst. of Puerto Rican Culture, 466 F. Supp. 2d 410, 414 (D.P.R. 2006); Hairston v. N.C. Argic. & Tech. State Univ., No. 04-1203, 2005 WL 2136923, at *8 (M.D.N.C. Aug. 5, 2005); Salerno v. City Univ. of N.Y., 191 F. Supp. 2d 352, 355–56 (S.D.N.Y. 2001).

3. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank (Fla. Prepaid I), 527 U.S. 627 (1999); see U.S. Const. art. I; id. amend. 14, § 5.

4. 491 U.S. 1, 23 (1989) (Stevens, J., concurring).

5. Wihtol v. Crow, 309 F.2d 777, 781 (8th Cir. 1962).

6. 591 F.2d 1278 (9th Cir. 1979).

7. U.S. Const. art. I, § 8, cl. 8; 17 U.S.C. §§ 101, 114, 116.

8. Patent and Plant Variety Protection Remedy Clarification Act, Pub. L. No. 102-560, 106 Stat. 4230 (1992) (codified at 35 U.S.C. §§ 271(h), 296(a)); Trademark Remedy Clarification Act, Pub. L. No. 102-542, 106 Stat. 3567 (1992) (codified at 15 U.S.C. § 1121).

9. 17 U.S.C. § 511(a).

10. 517 U.S. 44 (1996). This case specifically overturned the ruling in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), in which a plurality of the court held that sovereign immunity could be waived by Article I power of Congress.

11. Fla. Prepaid I, 527 U.S. 627, 635–36 (1999); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. (Fla. Prepaid II), 527 U.S. 666, 691 (1999). These two cases are companion cases and were later severed at the federal appellate level.

12. Allen v. Cooper, 895 F.3d 337 (4th Cir. 2018); Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297 (11th Cir. 2011).

13. Univ. of Hous. v. Chavez, 517 U.S. 1184 (1996); Chavez v. Arte Publico Press, 59 F.3d 539 (5th Cir. 1995), rev’d after remand, 204 F.3d 601 (5th Cir. 2000).

14. Letter from Janet Reno, Attorney Gen., to Hon. J. Dennis Hastert, Speaker, U.S. House of Representatives (Oct. 13, 1999), https://www.justice.gov/oip/foia-library/osg_530d_letters_5_5_2017/download; Letter from Jeffrey B. Wall, Acting Solicitor Gen., to Hon. Paul D. Ryan, Speaker, U.S. House of Representatives (May 5, 2017), https://www.justice.gov/oip/foia-library/osg_530d_letters_5_5_2017/download.

15. See supra note 2.

16. Green v. Mansour, 474 U.S. 64, 68 (1985).

17. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); see Alden v. Maine, 527 U.S. 706 (1999); Fla. Prepaid I, 527 U.S. 627 (1999). There is some argument that sovereign immunity is waived under Article I power. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006). This case involved Article I power and abrogation of sovereign immunity under the bankruptcy clause found in Article I, section 8, clause 4. However, opponents argue that Katz is a limited decision that is particular to bankruptcy only, which has a long history of abrogation of sovereign immunity.

18. U.S. Const. amend. 14, § 5; see United States v. Georgia, 546 U.S. 151, 158 (2006).

19. Fla. Prepaid I, 527 U.S. at 652 (citing City of Boerne v. Flores, 521 U.S. 507 (1997)).

20. Id. at 639; Fla. Prepaid II, 527 U.S. 666, 672–73 (1999).

21. U.S. Const. amend. 11.

22. 134 U.S. 1 (1890). This case involved a Louisiana citizen suing the state in federal court over changes to the Louisiana Constitution that could have affected the plaintiff’s bond holdings.

23. 209 U.S. 123 (1908). This case involved a lawsuit alleging a violation of the due process clause by Minnesota railroad officials when they enforced a new Minnesota law that placed limits on railroad fares.

24. See, e.g., Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1 (1988); Michael Landau, State Sovereign Immunity and Intellectual Property Revisited, 22 Fordham Intell. Prop. Media & Ent. L.J. 513 (2012).

25. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 278–79 (1985) (Brennan, J., dissenting).

26. Edelman v. Jordan, 415 U.S. 651 (1974).

27. Atascadero State Hosp., 473 U.S. 234. In Atascadero, the U.S. Supreme Court held that waiver could not be granted using general language. Even though this case did not involve IP, the issue of language for waiver was established.

28. Id. at 238–39 (footnote omitted) (citing Edelman, 415 U.S. at 673).

29. Edelman, 415 U.S. at 673; Murray v. Wilson Distilling Co., 213 U.S. 151 (1909).

30. Fla. Prepaid II, 527 U.S. 666 (1999); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299 (1990).

31. Fla. Prepaid II, 527 U.S. at 676 (citing Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 578 (1946)).

32. 415 U.S. at 673 (citing Murray, 213 U.S. at 171).

33. 209 U.S. 123 (1908).

34. See Landau, supra note 24, at 536–43.

35. Id. at 543. Landau suggests that even if a party obtains an injunction, the inability to recover damages makes monitoring future infringement difficult and potentially financially prohibitive.

36. Nautilus is Allen’s video production company that was retained by the shipwreck salvage company Intersal. The Queen Anne’s Revenge was discovered in 1998, and soon thereafter Intersal and Nautilus began working as contractors of North Carolina. The wreck itself is owned by North Carolina under N.C. Gen. Stat. chs. 121–122.

37. In the initial agreement between North Carolina, Nautilus, and Allen, the state gave commercial rights of the content to Intersal, the initial salvage company for the shipwreck. In the contract between the state and the salvage company, North Carolina retained rights to publication for noncommercial purposes, such as educational or historical publication.

38. N.C. Gen. Stat. § 121-25(b). This statute states: “All photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record pursuant to Chapter 132 of the General Statutes.” At the time of the complaint, the statute further provided: “There shall be no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy.” Allen claimed this new law was void under the Copyright Act, 17 U.S.C. §§ 101 et seq., and violated the takings and due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution, and that the continued use of the material was copyright infringement, an unlawful taking under 42 U.S.C. § 1983, a violation of North Carolina unfair and deceptive trade practices laws, and a civil conspiracy. Allen v. Cooper, 244 F. Supp. 3d 525, 531 (E.D.N.C. 2017).

39. Allen, 244 F. Supp. 3d at 532–33 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). The court noted that wavier of immunity has rarely been found even in cases where the state has entered into agreements that contain language in which the state agrees to consent to suits in various jurisdictions. The district court in Allen v. Cooper suggested that waiver from Eleventh Amendment protection must be expressly made by the state.

40. Fla. Prepaid I, 527 U.S. 627 (1999); see U.S. Const. art. I.

41. Allen, 244 F. Supp. 3d at 348–54.

42. Id. at 354–55.

43. Id. at 354–56. The Fourth Circuit also considered other issues relating to the suit, including the immunity of state officials who were sued personally by the plaintiffs. The state officials claimed that they enjoyed a qualified immunity in their official roles. The Fourth Circuit agreed that the officials had qualified immunity because under the U.S. Supreme Court’s requirement articulated in Pearson v. Callahan, 555 U.S. 223, 231 (2009), officials must understand that their actions are violating the law. In this instance, the Fourth Circuit held that there was no indication that the officials would have known unequivocally that publication of Allen’s and Nautilus’s footage would have constituted infringement under the Copyright Act.

44. Allen v. Cooper, 139 S. Ct. 2664 (2019).

45. Eugene Volokh, Sovereign Immunity and Intellectual Property, 73 S. Cal. L. Rev. 1161, 1163 (2000).

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Cayce Myers is an associate professor at Virginia Tech in the Department of Communication.