Copyright Remedy Clarification Act

Last updated
Copyright Remedy Clarification Act
Great Seal of the United States (obverse).svg
Long titleTo amend chapters 5 and 9 of title 17, United States Code, to clarify that States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of copyright and infringement of exclusive rights in mask works, and that all the remedies can be obtained in such suit that can be obtained in a suit against a private person or against other public entities.
Acronyms (colloquial)CRCA
Enacted bythe 101st United States Congress
Citations
Public lawPub. L. 101-553
Statutes at Large 104 Stat. 2749 (1990)
Codification
Acts amended Copyright Act of 1976
Titles amended17 (Copyrights)
U.S.C. sections amended17 USC 511(a)
Legislative history

The Copyright Remedy Clarification Act (CRCA) is a United States copyright law that attempted to abrogate sovereign immunity of states for copyright infringement. The CRCA amended 17 USC 511(a):

Contents

In general. 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.

Unconstitutionality

The CRCA has been struck down as unconstitutional by the United States Supreme Court in Allen v. Cooper (March 23, 2020).

The Supreme Court decision followed district and appellate courts in the 1st, 2nd, 4th, 5th, 6th, 9th, and 11th Circuits. The 11th Circuit did not strike down the CRCA but did not allow it to be used to avoid sovereign immunity on the facts that were before it. A case in the 9th Circuit settled before decision. Courts have generally followed the logic applied by the US Supreme Court in Seminole Tribe v. Florida , and applied in the patent context in Florida Prepaid v. College Savings Bank , 527 U.S. 627 (1999). In these cases the Court held that the Eleventh Amendment to the United States Constitution prohibits Congress from using its Article I powers to abrogate states' sovereign immunity (a holding that later Supreme Court cases such as Central Virginia Community College v. Katz have qualified), and that the Patent Remedy Clarification Act did not have a sufficient basis to meet Fourteenth Amendment requirements. Although most courts have refused to enforce the CRCA, one district court upheld the Act in 2017 and the 4th Circuit Court of Appeals should rule on an appeal from that decision in mid to late 2018.

Several cases upheld the sovereign immunity of state universities in particular. [1] [2] Legal scholars Paul J. Heald and Michael Wells wrote [3] that

the majority of lower courts that have addressed the question have assumed state universities to be arms of the state for the purpose of asserting Eleventh Amendment immunity. Putting aside until later the case of state officials sued in their official capacities, an entity that successfully proves it is an arm of the state presumptively is entitled to absolute immunity from suit in federal court, irrespective of the nature of the cause of action pleaded against it.

Further, cases for copyright violation by university radio stations were also dismissed as the radio, funded mostly by the university, was found to enjoy the same immunity. [4]

Here, the evidence is convincing and clear that WKMS is both financially and operationally dependent on the University and its Board of Regents, which, as we have already established, is considered the Commonwealth of Kentucky for purposes of Eleventh Amendment immunity. See Jackson v. Murray State Univ., 834 F. Supp. 2d. Based on this evidence, it is clear that the Murray State University Board of Regents and the Commonwealth of Kentucky remain the real parties in interest to this action notwithstanding Plaintiff’s amendments in his Second Amended Complaint. We therefore lack subject matter jurisdiction over this case given that none of the exceptions to the state's sovereign immunity apply here. See Philpot v. WUIS/University of Illinois Springfield, 2015 WL 5037551 (Aug. 25, 2015) (dismissing for lack of jurisdiction).

The CRCA attempt was repeated by Congress with the Intellectual Property Protection Restoration Act of 2001. [5]

Allen v. Cooper

The North Carolina Legislature passed "Blackbeard's Law", N.C. General Statute §121-25(b), [6] which stated, "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." The state government of North Carolina accordingly uploaded videos of the wreck of the Queen Anne's Revenge to its website.

Nautilus Productions, the company documenting the recovery since 1998, filed suit in federal court over copyright violations. [7] [8] [9] The Supreme Court granted certiorari in the case in 2019. [10] [11] [12] [13]

On November 5, 2019 the United States Supreme Court heard oral arguments in Allen v. Cooper. [14] [15] [16] [17] On March 23, 2020, the Supreme Court of the United States issued an opinion in Allen v. Cooper, holding that Congress had no Constitutional authority to abrogate state sovereign immunity via the Copyright Remedy Clarification Act. In other words, the CRCA is unconstitutional. Congress failed to provide evidence to support the need to abrogate sovereign immunity.

The case had received broad participation. The American Library Association and others filed an amicus brief siding with the state, saying that "state-run libraries and archives have not abused state sovereign immunity; copyright holders have sufficient means of enforcing their rights against state-run libraries and archives; elimination of the sovereign immunity for copyright claims would endanger digital preservation efforts by state-run libraries and archives". [18] Thirteen amici filed briefs in support of Allen, including the United States Chamber of Commerce, the Recording Industry Association of America, the Copyright Alliance, the Software and Information Industry Association, and the National Press Photographers Association. [19] [20] [21] Those briefs proposed various doctrines under which the CRCA could validly abrogate sovereign immunity and variously re-asserted and supported the reasons why Congress examined and enacted CRCA, claiming that Congress was fair in finding that states had abused immunity and that an alternative remedy was needed. [22] The brief by APLU and AAU stated the opposite on all counts. 30 states also filed a brief in support of Cooper, denying that the states had ever given up their sovereign immunity by ratifying the Progress Clause or otherwise. The brief by a law professor stated that there was no copyright infringement in the first place, under de minimis and fair use.

Following the ruling, Senators Thom Tillis (R-North Carolina) and Patrick Leahy (D-Vermont), of the intellectual property subcommittee on the Senate Judiciary Committee, sent letters to the U.S. Copyright Office and the U.S. Patent and Trademark Office requesting a study detailing copyright infringements by state governments. [23] The United States Copyright Office gave intellectual property owners suffering infringement by state entities until August 3, 2020 to publicly comment as part of this inquiry. [24] In September 2020 the U.S. Copyright Office began publishing comments where the copyright industry alleged hundreds of copyright violations by state entities across decades, while libraries and state entities denied the significance or intentionality of the alleged infringements. [25] [26] The subsequent report, issued on August 31, 2021 by the U.S. Copyright Office, referenced 132 copyright lawsuits filed against state entities and stated that "The Office..continues to believe that infringement by state entities is an issue worthy of congressional action." [27]

As a result of the ruling Nautilus filed a motion for reconsideration in the United States District Court for the Eastern District of North Carolina. [28] On August 18, 2021 Judge Terrence Boyle granted the motion for reconsideration which North Carolina promptly appealed to the United States Court of Appeals for the Fourth Circuit. [29] The 4th Circuit denied the state's motion on October 14, 2022. [30] Nautilus then filed their second amended complaint on February 8, 2023 alleging 5th and 14th Amendment violations of Nautilus' constitutional rights, additional copyright violations, and claiming that North Carolina's "Blackbeard's Law," N.C. General Statute §121-25(b), [31] represents a Bill of Attainder. [32] [33]

In a press release Nautilus noted that, "North Carolina...and state entities can sue others for copyright infringement and damages. However, U.S. citizens and corporations are legally barred from suing states or state entities for those very same copyright infringements or for damages!” [34] Eight years after the law's passage, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard's Law. [35]

Case law

Related Research Articles

<span class="mw-page-title-main">Eleventh Amendment to the United States Constitution</span> 1795 amendment restricting ability to sue states in federal courts

The Eleventh Amendment is an amendment to the United States Constitution which was passed by Congress on March 4, 1794, and ratified by the states on February 7, 1795. The Eleventh Amendment restricts the ability of individuals to bring suit against states of which they are not citizens in federal court.

Chisholm v. Georgia, 2 U.S. 419 (1793), is considered the first United States Supreme Court case of significance and impact. Since the case was argued prior to the formal pronouncement of judicial review by Marbury v. Madison (1803), there was little available legal precedent. The Court in a 4–1 decision ruled in favor of Alexander Chisholm, executor of an estate of a citizen of South Carolina, holding that Article III, Section 2 grants federal courts jurisdiction in cases between a state and a citizen of another state wherein the state is the defendant.

A bill of attainder is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property, the right to a title of nobility, and, in at least the original usage, the right to life itself.

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the United States Constitution. The Supreme Court decided that Title I of the Americans with Disabilities Act was unconstitutional, insofar as it allowed states to be sued by private citizens for money damages.

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment. Such abrogation is permitted where it is necessary to enforce the rights of citizens guaranteed under the Fourteenth Amendment as per Fitzpatrick v. Bitzer. The case also held that the doctrine of Ex parte Young, which allows state officials to be sued in their official capacity for prospective injunctive relief, was inapplicable under these circumstances, because any remedy was limited to the one that Congress had provided.

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), was a United States Supreme Court decision that determined that the U.S. Congress has the power to abrogate the Eleventh Amendment sovereign immunity of the states, if this is done pursuant to its Fourteenth Amendment power to enforce upon the states the guarantees of the Fourteenth Amendment.

<span class="mw-page-title-main">Abrogation doctrine</span>

The abrogation doctrine is a US constitutional law doctrine expounding when and how the Congress may waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented.

<i>Queen Annes Revenge</i> Pirate Blackbeards ship

Queen Anne's Revenge was an early-18th-century ship, most famously used as a flagship by Edward Teach, better known by his nickname Blackbeard. The date and place of the ship's construction are uncertain, and there is no record of its actions prior to 1710 when it was operating as a French privateer under the name La Concorde. Surviving features of the ship's construction strongly suggest it was built by French shipwrights, based on differences in fastening patterns in the late 17th and early 18th centuries. After several years of service by French sailors, she was captured by Blackbeard in 1717. Blackbeard used the ship for less than a year, but captured numerous prizes using her as his flagship.

Northern Insurance Company of New York v. Chatham County, 547 U.S. 189 (2006), is a United States Supreme Court case addressing whether state counties enjoyed sovereign immunity from private lawsuits authorized by federal law. The case involved an admiralty claim by an insurer against Chatham County, Georgia for its negligent operation of a drawbridge. The Court ruled unanimously that the county had no basis for claiming immunity because it was not acting as an "arm of the state."

<span class="mw-page-title-main">Professional Photographers of America</span> Photographic organization

Professional Photographers of America (PPA) is a nonprofit trade association of professional photographers. As of August 2022, PPA has 35,000 members.

The North American Nature Photography Association or NANPA is an organization dedicated to photography of nature. The association's headquarters were originally in Wheat Ridge, Colorado, and now are in Alma, Illinois. Established in 1994, NANPA joined forces with ASMP at the end of 2022. Together, the two organizations have about 6,500 members in North America and internationally. Several categories of membership are available, including discounts for students. The association annually sponsors a variety of activities. Among them are regional events, nature photo competitions, and webinars throughout the United States. NANPA sponsored a Nature Photography Celebration in 2018. The NANPA Foundation, established in 1997, funds scholarships, photo blinds for wildlife photography, and grants for conservation photography projects, and to photography students. NANPA also markets books of interest to members, including those by members, through Amazon.com.

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), was a US Supreme Court case that determined that the US Congress's enforcement powers under the Fourteenth Amendment to the US Constitution did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment over complaints of discrimination that is rationally based on age.

<span class="mw-page-title-main">National Press Photographers Association</span>

The National Press Photographers Association (NPPA) is an American professional association made up of still photographers, television videographers, editors, and students in the journalism field. Founded in 1946, the organization is based in at the Grady College of Journalism and Mass Communication at the University of Georgia. The NPPA places emphasis on photojournalism, or journalism that presents a story through the use of photographs or moving pictures. The NPPA holds annual competitions as well as several quarterly contests, seminars, and workshops designed to stimulate personal growth in its members. It utilizes a mentor program which offers its members the opportunity to establish a relationship with a veteran NPPA member and learn from them. The organization also offers a critique service, a job bank, an online discussion board, and various member benefits.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1929, are in the public domain.

<i>Schillinger v. United States</i> 1894 United States Supreme Court case

Schillinger v. United States, 155 U.S. 163 (1894), is a decision of the United States Supreme Court, holding that a suit for patent infringement cannot be entertained against the United States, because patent infringement is a tort and the United States has not waived sovereign immunity for intentional torts.

<span class="mw-page-title-main">Sovereign immunity in the United States</span> Legal protection of federal, state and tribal governments

In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity, also known as governmental immunity, from lawsuits. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong." In some situations, sovereign immunity may be waived by law.

<span class="mw-page-title-main">Graphic Artists Guild</span>

The Graphic Artists Guild is a guild of graphic designers, illustrators, and photographers and is organized into seven chapters around the United States. It is a member of the international organization Icograda.

<span class="mw-page-title-main">Nautilus Productions</span> American video production, stock footage, and photography company

Nautilus Productions LLC is an American video production, stock footage, and photography company incorporated in Fayetteville, North Carolina in 1997. The principals are producer/director Rick Allen and photographer Cindy Burnham. Nautilus specializes in documentary production and underwater videography, and produced QAR DiveLive, a live webcast of underwater archaeology filmed at the wreck of the Queen Anne's Revenge in 2000 and 2001.

Jam v. International Finance Corp., 586 U.S. ___ (2019), was a United States Supreme Court case from the October 2018 term. The Supreme Court ruled that international organizations, such as the World Bank Group's financing arm, the International Finance Corporation, can be sued in US federal courts for conduct arising from their commercial activities. It specifically held that international organizations shared the same sovereign immunity as foreign governments. This was a reversal from existing jurisprudence, which held that international organizations had near-absolute immunity from lawsuits under the Foreign Sovereign Immunities Act and the International Organizations Immunities Act.

On August 18, 2015, then North Carolina Governor Pat McCrory (R) signed "Blackbeard's Law," N.C. General Statute §121-25(b), into law. The statute stated that, "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 the North Carolina government or its subdivisions shall be a public record pursuant to G.S. 132-1. 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." The statute was inserted into another bill by Representatives Norman Sanderson and Jim Davis at the request of the North Carolina Department of Natural and Cultural Resources (NCDNCR). One year later, the North Carolina Legislature amended the statute to read, "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." The moniker "Blackbeard's Law" refers to the pirate Blackbeard and was first penned by reporter Paul Woolverton of the Fayetteville Observer.

References

  1. ↑ "Court Confirms Sovereign Immunity for State Universities in Copyright Suit". Copyright Licensing Office. Retrieved 2019-01-22.
  2. ↑ "Are Public Universities Immune from Copyright Infringement?". Copyright Licensing Office. Retrieved 2019-01-22.
  3. ↑ Heald, Paul; Wells, Michael (1 June 1998). "Remedies for the Misappropriation ofIntellectual Property by State and MunicipalGovernments Before and After SeminoleTribe: The Eleventh Amendmentand Other Immunity Doctrines". Washington and Lee Law Review. 55 (3): 849.
  4. ↑ Philpot v. WKMS( United States District Court for the Southern District of Indiana Indianapolis Division2016-03-30), Text .
  5. ↑ Roberts, Alisa (2002). "Congress' Latest Attempt to Abrogate States' Sovereign Immunity Defense Against Copyright Infringement Actions: Will IPPRA Help the Music Industry Combat Online Piracy on College Campuses?". DePaul Journal of Art, Technology & Intellectual Property Law. 12 (39).
  6. ↑ "§ 121-25. License to conduct exploration, recovery or salvage operations" (PDF). ncleg.gov. North Carolina. Retrieved 25 May 2023.
  7. ↑ "Allen v Cooper, et al". Supreme Court of the United States. Supreme Court of the United States. Retrieved 22 June 2019.
  8. ↑ Gresko, Jessica (3 June 2019). "High court will hear copyright dispute involving pirate ship". Associated Press. Retrieved 22 June 2019.
  9. ↑ Wolverton, Paul (2 November 2019). "Pirate ship lawsuit from Fayetteville goes to Supreme Court on Tuesday". Fayetteville Observer. Retrieved 2 November 2019.
  10. ↑ "Allen v. Cooper".
  11. ↑ "No. 18-877". Supreme Court of the United States. Supreme Court of the United States. Retrieved 25 July 2019.
  12. ↑ Liptak, Adam (2 September 2019). "Blackbeard's Ship Heads to Supreme Court in a Battle Over Another Sort of Piracy". New York Times. Retrieved 20 October 2019.
  13. ↑ Gardner, Eriq (5 November 2019). "Supreme Court Wrestles With Consequences for Piracy by State Governments". Hollywood Reporter. Retrieved 16 November 2019.
  14. ↑ Murphy, Brian (5 November 2019). "How Blackbeard's ship and a diver with an 'iron hand' ended up at the Supreme Court". Charlotte Observer. Retrieved 16 November 2019.
  15. ↑ Wolf, Richard (5 November 2019). "Aarrr, matey! Supreme Court justices frown on state's public display of pirate ship's salvage operation". USA Today. Retrieved 27 December 2019.
  16. ↑ Livni, Ephrat (5 November 2019). "A Supreme Court piracy case involving Blackbeard proves truth is stranger than fiction". Quartz. Retrieved 27 December 2019.
  17. ↑ Woolverton, Paul (5 November 2019). "Supreme Court justices skeptical in Blackbeard pirate ship case from Fayetteville". Fayetteville Observer. Retrieved 27 December 2019.
  18. ↑ "LCA Joins Amicus Brief: Frederick L. Allen, et al., v. Roy A. Cooper, III". 2019-09-27. Retrieved 2019-11-17.
  19. ↑ "Allen v. Cooper". Copyright Alliance. Retrieved 18 November 2019.
  20. ↑ "NPPA, ASMP asks SCOTUS for protection of copyright infringement by states". NPPA. Retrieved 18 November 2019.
  21. ↑ "Allen v. Cooper". U.S. Chamber Litigation Center. Retrieved 18 November 2019.
  22. ↑ Kass, Dani. "Copyright Cavalry Supports Pirate Ship Photog At High Court". Constitutional Accountability Center. Retrieved 17 November 2019.
  23. ↑ Gardner, Eriq (29 April 2020). "Senators Ask U.S. Copyright, Patent Offices to Study Infringement by States". Hollywood Reporter. Retrieved 15 June 2020.
  24. ↑ "State Sovereign Immunity Study". Copyright.gov. U.S. Copyright Office. Retrieved 15 June 2020.
  25. ↑ "Sovereign Immunity Study". Regulations.gov. Retrieved 15 October 2020.
  26. ↑ Madigan, Kevin. "Copyright Alliance Survey Reveals Growing Threat of State Infringement". Copyright Alliance. Retrieved 15 October 2020.
  27. ↑ "Copyright and State Sovereign Immunity" (PDF). copyright.gov. U.S. Copyright Office. Retrieved 1 September 2021.
  28. ↑ McKlveen, Gina (28 October 2022). "A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity". Institute of Art & Law. Retrieved 24 March 2023.
  29. ↑ "Reconsideration Granted" (PDF). Nautilus Productions. Retrieved 5 April 2023.
  30. ↑ "4th Circuit Recon" (PDF). Nautilus Productions. Retrieved 5 April 2023.
  31. ↑ "§ 121-25. License to conduct exploration, recovery or salvage operations" (PDF). ncleg.gov. North Carolina. Retrieved 25 May 2023.
  32. ↑ "PLAINTIFFS' SECOND AMENDED COMPLAINT" (PDF). IPWatchdog. IPWatchdog. Retrieved 24 March 2023.
  33. ↑ Barnes, Greg (14 February 2023). "Fayetteville's Blackbeard shipwreck filmmaker fires back in new court case". CityView. Retrieved 24 March 2023.
  34. ↑ "Blackbeard Copyright Case Gets Second Chance in Federal Court". PRLOG. Nautilus Productions. Retrieved 27 October 2023.
  35. ↑ "AN ACT TO MAKE VARIOUS CHANGES TO THE STATUTES GOVERNING THE DEPARTMENT OF NATURAL AND CULTURAL RESOURCES, AS RECOMMENDED BY THE DEPARTMENT" (PDF). ncleg.gov. North Carolina. Retrieved 21 July 2023.

See also

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.