Copyright Remedy Clarification Act

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Copyright Remedy Clarification Act
Great Seal of the United States
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
Public lawPub. L. 101-553
Statutes at Large104 Stat. 2749 (1990)
Acts amendedCopyright 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 attempts to abrogate sovereign immunity of states for copyright infringement. The CRCA amended 17 USC 511(a):

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.


The CRCA has been struck down as unconstitutional by district courts in the 1st, 2nd, 4th, 5th, 6th, 9th, and 11th Circuit appellate courts. 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 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 radios 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]

In 2019 the Supreme Court of the United States granted certiorari in Allen v. Cooper, raising the question of whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.[6][7][8][9] On November 5, 2019 the United States Supreme Court heard oral arguments in Allen v. Cooper. A decision in the case is expected in the late spring of 2020.[10][11][12][13]

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".[14] 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.[15][16][17] 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.[18] 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.

Case law[edit]

  • Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000)
  • Salerno v. City Univ. of N.Y., 191 F. Supp. 2d 352 (S.D.N.Y. 2001)
  • Hairston v. N.C. Agricultural and Technical State University, 2005 WL 2136923 (M.D.N.C. 2005)
  • De Romero v. Institute of Puerto Rican Culture, 466 F. Supp. 2d 410 (D.P.R. 2006)
  • Marketing Information Masters v. The Trustees of the California State University, 522 F.Supp. 2d 1088 (S.D. Cal. 2008)
  • Romero v. California Dept. of Transportation, 2009 WL 650629 (C.D. Cal. 2009)
  • Jacobs v. Memphis Convention and Visitors Bureau, 710 F. Supp. 2d 663 (W.D. Tenn. 2010)
  • Parker v. Dufreshne, 2010 U.S. Dist. LEXIS 64481 (W.D. La. 2010)
  • Whipple v. Utah, 2011 WL 4368568 (D. Utah 2011)
  • National Association of Boards of Pharmacy v. University of Georgia (11th Cir. 2011)-- says CRCA could be justified by 14th Amendment but the case before it did not present a factually sufficient due process claim.
  • Reiner v. Saginaw Valley State University et al (Thomas Canale), E.D. Mich. March 15, 2018 (following other circuits in not entertaining a CRCA claim)
  • Coyle v. University of Kentucky, 2. F. Supp. 3d 1014 (E.D. Ky. March 4, 2014)
  • Issaenko v. Univ. of Minn., 57 F.Supp. 3d 985 (D. Minn. 2014)
  • Philpot v. WUIS/University of Illinois Springfield, S.D. Ind. Aug. 25, 2015.
  • Campinha-Bacote v. Regents of the Univ. of Mich., 2016 U.S. Dist. LEXIS 5958 (S.D. Ohio Jan. 19, 2016)
  • Am. Shooting Ctr., Inc. v. Sefcor Int'l, 2016 U.S. Dist. LEXIS 96111 (S.D. Cal. July 22, 2016)
  • Alisa Wolf v. Oakland University, E.D. Mich. Dec. 5, 2016 (finding Chavez and Jacobs to be "highly persuasive")
  • Nettleman III v. Florida Atlantic University, S.D. Fla. Jan. 5, 2017 (finding plaintiff did not state a complaint under the CRCA sufficient to abrogate state immunity, and noting the 5th Circuit's Chavez holding CRCA to be unconstitutional)
  • Bell v. Indiana University (S.D. Ind. March 9, 2018)
  • Allen v. Cooper The 4th Circuit ruled against plaintiff in 2018; plaintiff appealed and the U.S. Supreme Court heard oral arguments in the case on November 5th, 2019. (Case 18-877).[19]


  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 Division 2016-03-30). Text
  5. ^ Alisa Roberts, 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?, 12 DePaul J. Art, Tech. & Intell. Prop. L. 39 (2002)
  6. ^ "Allen v. Cooper".
  7. ^ "No. 18-877". Supreme Court of the United States. Supreme Court of the United States. Retrieved 25 July 2019.
  8. ^ 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.
  9. ^ Gardner, Eriq (5 November 2019). "Supreme Court Wrestles With Consequences for Piracy by State Governments". Hollywood Reporter. Retrieved 16 November 2019.
  10. ^ 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.
  11. ^ 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.
  12. ^ Livni, Ephrat (5 November 2019). "A Supreme Court piracy case involving Blackbeard proves truth is stranger than fiction". Quartz. Retrieved 27 December 2019.
  13. ^ Woolverton, Paul (5 November 2019). "Supreme Court justices skeptical in Blackbeard pirate ship case from Fayetteville". Fayetteville Observer. Retrieved 27 December 2019.
  14. ^ "LCA Joins Amicus Brief: Frederick L. Allen, et al., v. Roy A. Cooper, III". 2019-09-27. Retrieved 2019-11-17.
  15. ^ "Allen v. Cooper". Copyright Alliance. Retrieved 18 November 2019.
  16. ^ "NPPA, ASMP asks SCOTUS for protection of copyright infringement by states". NPPA. Retrieved 18 November 2019.
  17. ^ "Allen v. Cooper". U.S. Chamber Litigation Center. Retrieved 18 November 2019.
  18. ^ Kass, Dani. "Copyright Cavalry Supports Pirate Ship Photog At High Court". Constitutional Accountability Center. Retrieved 17 November 2019.
  19. ^ 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 16 November 2019.

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