Copyright Remedy Clarification Act Does Not Abrogate States' Sovereign Immunity: S.D. Ohio | Practical Law

Copyright Remedy Clarification Act Does Not Abrogate States' Sovereign Immunity: S.D. Ohio | Practical Law

In Campinha-Bacote v. Regents of the University of Michigan, the US District Court for the Southern District of Ohio held that the Copyright Remedy Clarification Act does not abrogate a state university's Eleventh Amendment immunity because Congress did not pass the Act pursuant to a valid grant of constitutional authority.

Copyright Remedy Clarification Act Does Not Abrogate States' Sovereign Immunity: S.D. Ohio

by Practical Law Intellectual Property & Technology
Published on 22 Jan 2016 • USA (National/Federal)
In Campinha-Bacote v. Regents of the University of Michigan, the US District Court for the Southern District of Ohio held that the Copyright Remedy Clarification Act does not abrogate a state university's Eleventh Amendment immunity because Congress did not pass the Act pursuant to a valid grant of constitutional authority.
On January 19, 2016, in Campinha-Bacote v. Regents of the University of Michigan, the US District Court for the Southern District of Ohio joined the US Court of Appeals for the Fifth Circuit and numerous federal district courts in holding that Congress did not act pursuant to a valid grant of constitutional authority when it passed the Copyright Remedy Clarification Act (CRCA), and therefore the CRCA cannot abrogate the states' sovereign immunity from being sued for copyright infringement ( (S.D. Ohio Jan. 19, 2016) (17 U.S.C. § 511(a))).
Josepha Campinha-Bacote does business as Transcultural C.A.R.E. Associates, and created an original, copyrighted work on cultural competence entitled "Cultural Competency in Healthcare Delivery: Have I 'ASKED' Myself the Right Questions?" After determining that someone at the University of Michigan had reproduced and republished her copyrighted materials, she sued the Regents of the University of Michigan and several John Does for copyright infringement. Campinha-Bacote did not contest that the University is a state entity.
The University moved to dismiss Campinha-Bacote's complaint, arguing that it is immune from suit under the Eleventh Amendment to the US Constitution. Campinha-Bacote argued that the CRCA, which specifically states that the Eleventh Amendment does not immunize states from copyright claims, had abrogated the University's immunity from suit for copyright infringement.
The district court explained that Congress may abrogate the states' Eleventh Amendment immunity when it both:
  • Unequivocally intends to do so.
  • Acts pursuant to a valid grant of constitutional authority.
The district court found that Congress clearly intended to abrogate sovereign immunity with the CRCA. However, it cited and joined the unanimous holdings of several other courts, including the Fifth Circuit and US District Court for the Eastern District of New York, and held that Congress did not act pursuant to a valid grant of constitutional authority when it enacted the CRCA.
Recognizing that the US Court of Appeals for the Sixth Circuit and the US Supreme Court have not ruled on this issue, the district court held that:
  • Congress passed the CRCA pursuant to the Copyright Clause found in Article I of the US Constitution.
  • Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank mandates that Congress cannot validly abrogate a state's immunity from suit by passing legislation pursuant to Article I of the Constitution (527 U.S. 627, 635-36 (1999)).
  • Therefore, the CRCA is not a valid abrogation of the University's Eleventh Amendment immunity.
The district court also rejected Campinha-Bacote's argument that Congress passed the CRCA pursuant to Section 5 of the Fourteenth Amendment. Recognizing that Section 5 is a well-established method of abrogating states' authority, the district court nonetheless rejected this basis for abrogation, because:
  • Campinha-Bacote offered no evidence or caselaw showing that Congress had passed the CRCA pursuant to Section 5.
  • Multiple other district courts, including in New Hampshire and Minnesota, have rejected this argument.
The district court also rejected Campinha-Bacote's argument that the states' sovereign immunity was validly abrogated pursuant to Section 5 because the statutorily prescribed conduct also violated the guarantee of due process under the Fourteenth Amendment. Quoting National Association of Boards of Pharmacy v. Board of Regents, the court explained that copyright infringement does not simultaneously and independently violate a constitutional guarantee protected by the Fourteenth Amendment (633 F.3d 1297 (11th Cir. 2011)). Thus, whether the University's immunity violates due process is an inquiry distinct from whether a copyright was infringed, and Campinha-Bacote had not pled a due process violation.
As a result, the district court granted the University's motion to dismiss. Nonetheless, it allowed Campinha-Bacote to amend her complaint to add two individuals whom she alleged had individually infringed her copyright.