The federal courts recently have renewed the debate concerning whether a person can sue a state government or its instrumentalities for copyright infringement. The question presents a clash of fundamental constitutional principles between the copyright and patent clause,' whose purpose is to promote the free flow of ideas by rewarding creativity,' and the eleventh amendment,whose primary purpose is to protect the federal form of government by insulating states from suit in federal court. The Copyright Act of 1976 (the 1976 Act) and its predecessor, the Copyright Act of 1909 (the 1909 Act), grant copyright proprietors"exclusive" rights in their works. While 28 U.S.C. § 1338(a) grants federal courts exclusive subject matter jurisdiction to entertain actions concerning copyright infringement, the eleventh amendment generally prohibits suits in federal court against state governments." Thus, absent a waiver or other abrogation of eleventh amendment immunity, a proprietor's rights in a work apparently are not always exclusive; in effect, the owner is required to share his copyright if the infringer is a state government or its instrumentality.
The resolution of this question necessarily requires an examination of two constitutional issues. The first issue is the extent to which a state impliedly waives its eleventh amendment immunity from suit in federal court by engaging in a federally regulated activity. The United States Supreme Court first enunciated the implied waiver doctrine in Parden v. Terminal Railway. Federal courts traditionally have interpreted Parden to mean that Congress may condition a state's participation in certain federally regulated activities, such as the operation of an interstate railroad,'upon the state's waiver of immunity to potential private suits in federal court. In a copyright infringement suit, however, it is unclear whether the state's use of copyrighted material constitutes consent to suit in federal court. Thus, the question of whether the implied waiver doctrine articulated in Parden applies in a copyright infringement suit against a state remains unanswered.
John C. Beiter,
Copyright Infringement and the Eleventh Amendment: A Doctrine of Unfair Use?,
40 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol40/iss1/5