awards in federal court.[1] Because sovereign immunity limits the judicial power of the federal judiciary under Article III of the Constitution, absent a valid retraction of that sovereign immunity by Congress, “a State will … not be subject to suit in federal court unless it has consented to suit, either expressly or in the plan of the convention.”[2] While Congress has attempted to abrogate states’ immunity from liability for federal copyright law violations,[3] over a dozen cases have found those attempts to be ineffective, including appellate decisions from the Eleventh, Fifth, and most recently the Fourth Circuits.[4] Sovereign immunity can be an important factor in assessing the risk of adopting a CDL program. Presently, state and tribal governments and their related departments such as state university libraries, museums, or archives, are immune from damage awards. Of course, plaintiffs could still bring a suit. Sovereign immunity also lowers the risk of such a suit because the outcome may have little reward—there is no money in it for litigants.
While some risks such as exposure to damages may be minimized by sovereign immunity or the statutory damages exception, libraries can also be proactive to minimize risk with CDL by implementing some additional system design and library policies, as well as selecting materials to be lent using CDL with an eye toward risk. We conclude with several practical ideas about how to do so:
- A.System Design and Library Policies
The six basic system design elements identified in the Statement and introduced at the outset of this paper are, we believe, all that are necessary to make a compelling legal case for CDL.[5] There are, however, several other
- ↑ See Nevada v. Hall, 440 U.S. 410, 420 n. 19 (1979).
- ↑ Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 779 (1991).
- ↑ In 1990, Congress passed the Copyright Remedy Clarification Act (CRCA), 17 U.S.C. § 511, as part of an effort by Congress to attempt to remedy imbalances between private and state institutions caused by Eleventh Amendment sovereign immunity in the intellectual property arena. It declared that “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 either the Eleventh Amendment for violation of the exclusive rights of copyright holders. 17 U.S.C. § 511(a).
- ↑ “We conclude that in enacting the Copyright Remedy Clarification Act, Congress satisfied neither requirement [to abrogate Eleventh Amendment sovereign immunity].” Allen v. Cooper, No. 17-1522, 2018 WL 3352378, at *7 (4th Cir. July 10, 2018); Natl. Ass’n of Boards of Pharm. v. Bd. of Regents of the U. System of Georgia, 633 F.3d 1297 (11th Cir. 2011); Rodriguez v. Texas Commn. on the Arts, 199 F.3d 279 (5th Cir. 2000). See also Issaenko v. U. of Minnesota, 57 F. Supp. 3d 985, 1007 (D. Minn. 2014) (citing a dozen cases).
- ↑ The six design principles state that libraries should:
