Considering whether a public university could be held liable for a professor’s alleged copyright infringement under the Copyright Remedy Clarification Act (CRCA), the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s ruling that the public university was exempt from liability under the CRCA because of sovereign immunity principles. National Association of Boards of Pharmacy v. Bd. of Regents of the University System of Georgia, 2011 U.S. App. LEXIS 3543 (11th Cir., Feb. 24, 2011) (Tjoflat, J.)

Plaintiff National Association of Boards of Pharmacy develops and administers examinations that the pharmacy boards use to evaluate applicants for pharmacist licenses. The plaintiff sought damages and injunctive relief under the Copyright Remedy Clarification Act against a professor at the University of Georgia, the Board of Regents of the University System of Georgia, and other university officials. The plaintiff alleged that the professor infringed its copyrights by appropriating portions of the plaintiff’s pharmacy board examinations to use in a commercial test preparation course. Hundreds of the professor’s exam questions were identical to those created by the plaintiff for its examinations.

The university defendants moved to dismiss plaintiff’s copyright infringement claims based upon sovereign immunity, which the district court granted. On appeal, the 11th Circuit reviewed whether the university was exempt from liability under 11th Amendment sovereign immunity. The court noted that “[t]he legislative history of the CRCA makes clear that Congress intended to abrogate state sovereign immunity under its Article I powers.” However, the 11th Circuit also found that Congress did not possess the power to abrogate state sovereign immunity through the CRCA, affirming the district court’s dismissal. Ultimately, the district court rejected the plaintiff’s argument that the Copyright and Patent Clause of Article I of the Constitution provides Congress with the authority to abrogate state sovereign immunity through the Patent Remedy Act. Further, the court rejected the plaintiff’s argument that a decision abrogating state sovereign immunity concerning the Bankruptcy Clause of Article I could be extended to the Copyright and Patent Clause.

The plaintiff also argued that §5 of the Fourteenth Amendment supports Congress’ abrogation of the States’ sovereign immunity in the CRCA. Section 5 grants Congress the authority to abrogate state sovereign immunity for violations of the Fourteenth Amendment. However, the 11th Circuit court held that the copyright infringement complained of did not amount to a violation of the Due Process Clause. The court determined that it could not hold the state liable because the state did not know that the professor’s copyright infringement was about to occur and thus had no opportunity to provide the copyright holder, the plaintiff, an opportunity to be heard. Because the state never deprived the plaintiff of that opportunity, the court found no due process violation under the Fourteenth Amendment.

Practice Note: The Copyright Remedy Clarification Act provides limited remedies for violations by government actors, such as states. However, Congress cannot abrogate the doctrine of sovereign immunity by enacting the CRCA by relying on the Patent Clause of Article I of the Constitution.