Copyright Remedy Clarification Act


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

Unconstitutionality

The CRCA has been struck down as unconstitutional by the US Supreme Court in Allen v. Cooper.
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. 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, 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. Legal scholars Paul Heald and Michael Wells wrote 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 radios were also dismissed as the radio, funded mostly by the university, was found to enjoy the same immunity.

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 .

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

Allen v. Cooper

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 Supreme Court had granted certiorari in the case in 2019.
On November 5, 2019 the United States Supreme Court heard oral arguments in Allen v. Cooper.
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". Thirteen amici 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, filed briefs in support of Allen.
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. 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 and Patrick Leahy, 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. 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.

Case law