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Nos. 17-1522(L), 17-1602

In the
United States Court of Appeals
for the Fourth Circuit

FREDERICK L. ALLEN et al.,


Plaintiffs-Cross-Appellants,
v.
ROY A. COOPER, III, as Governor of North Carolina, et al.,
Defendants-Appellants.

On Appeal from the United States District Court


for the Eastern District of North Carolina

RESPONSE AND REPLY BRIEF


OF DEFENDANTS-APPELLANTS

JOSHUA H. STEIN
Attorney General
Matthew W. Sawchak
Solicitor General
Ryan Y. Park
Deputy Solicitor General
Amar Majmundar
Senior Deputy Attorney General
Olga E. Vysotskaya de Brito
Special Deputy Attorney General
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
(919) 716-6400
Counsel for Defendants-Appellants
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................................................................iv

RESTATEMENT OF ISSUES PRESENTED ON THE CROSS-APPEAL ............. 1

SUMMARY OF THE ARGUMENT....................................................................... 3

ARGUMENT ......................................................................................................... 6

Standards of Review on the Cross-Appeal ............................................... 6

Discussion ................................................................................................... 7

I. Congress Did Not Validly Abrogate the States’ Eleventh


Amendment Immunity for Copyright Claims .......................................... 7

A. Article I does not allow Congress to abrogate


Eleventh Amendment immunity .................................................... 8

1. Controlling Supreme Court precedent decides


the Article I issue in this case ............................................... 8

2. The Supreme Court’s decision in Katz does not


apply here .............................................................................. 10

B. The Clarification Act was not a valid exercise of


Congress’s Fourteenth Amendment enforcement
power ................................................................................................13

1. Congress did not rely on the Fourteenth


Amendment when it enacted the Clarification
Act .......................................................................................... 14

2. The Act is not a valid exercise of Section 5 ......................... 16

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a. Congress did not identify a pattern of


unconstitutional conduct by states ........................... 18

i. Allen’s examples do not show


unconstitutional conduct ................................. 19

ii. Allen’s list does not describe


widespread copyright infringement
by states .............................................................20

a. Four of Allen’s examples


show only private
infringement ........................................... 22

b. Two of Allen’s examples


describe only hypotheticals ...................24

c. Three of Allen’s examples


had been disproven ................................ 25

d. The remaining five examples


do not show proven
infringement by states ............................ 27

iii. The Clarification Act cannot be


upheld based on fears of future
infringement .....................................................29

b. Congress did not adequately consider


alternatives to abrogation .......................................... 33

c. The Clarification Act was not narrowly


tailored ........................................................................ 35

C. The Eleventh Amendment bars both of Allen’s


copyright-related claims ................................................................ 36

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II. The Department Did Not Waive Its Sovereign Immunity


for Copyright Claims ............................................................................... 40

A. The settlement agreement does not unequivocally


waive sovereign immunity .............................................................42

B. Allen’s implied-waiver theory misreads the


settlement agreement.....................................................................45

III. The Ex Parte Young Exception to Eleventh Amendment


Immunity Does Not Apply Here ..............................................................47

IV. Legislative Immunity Bars Lawsuits Against Government


Officials for Helping to Enact a Statute .................................................. 51

V. Qualified Immunity Bars the Copyright-Infringement Claim ...............54

A. This Court has jurisdiction to consider qualified


immunity ......................................................................................... 55

B. Allen has offered no effective defense for the district


court’s misstatement of the test for qualified
immunity ......................................................................................... 57

C. A reasonable official could have believed that the


Department’s display of Allen’s works was fair use......................58

D. A reasonable official could also have believed that


Allen had agreed to allow the Department to display
his works..........................................................................................62

VI. Allen’s Cross-Appeal on His Takings Claim Lacks Merit ....................... 63

Conclusion ..........................................................................................................65

Certificate of Service

Certificate of Compliance
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TABLE OF AUTHORITIES
Page(s)

Cases

Acorn Structures, Inc. v. Swantz,


846 F.2d 923 (4th Cir. 1988) .....................................................................34

Anderson v. Creighton,
483 U.S. 635 (1987) ................................................................................... 60

Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ...................................................................................... 55

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ........................................................................... passim

Atascadero State Hosp. v. Scanlon,


473 U.S. 234 (1985) ................................................................................... 42

Bd. of Trs. of Univ. of Ala. v. Garrett,


531 U.S. 356 (2001) .......................................................................... 22, 31, 32

Behrens v. Pelletier,
516 U.S. 299 (1996) .................................................................................... 52

Bogan v. Scott-Harris,
523 U.S. 44 (1998) .......................................................................... 52, 53, 54

BV Eng’g v. Univ. of Cal., Los Angeles,


858 F.2d 1394 (9th Cir. 1998) ............................................................. 28, 29

CCC Info. Servs. v. Maclean Hunter Mkt. Reports,


44 F.3d 61 (2d Cir. 1994)............................................................................ 23

Cent. Va. Cmty. Coll. v. Katz,


546 U.S. 356 (2006) ..........................................................................10, 11, 12

iv
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Chambers v. Amazon.com,
632 F. App’x 742 (4th Cir. 2015)......................................................... 49, 50

Chavez v. Arte Publico Press,


204 F.3d 601 (5th Cir. 2000) .................................................................... 20

Citadel Corp. v. P.R. Highway Auth.,


695 F.2d 3 (1st Cir. 1982) .......................................................................... 65

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,


527 U.S. 666 (1999) ........................................................................... passim

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,


148 F.3d 1343 (Fed. Cir. 1998), rev'd, 527 U.S. 666 (1999) ........................ 21

Constantine v. Rectors & Visitors of George Mason Univ.,


411 F.3d 474 (4th Cir. 2005) ..................................................................... 40

Davis v. City of Greensboro,


770 F.3d 278 (4th Cir. 2014) .................................................................... 56

Dep’t of Transp. v. Adams Outdoor Adver. of Charlotte,


804 S.E.2d 486 (N.C. 2017) ...................................................................... 64

De Romero v. Inst. of P.R. Culture,


466 F. Supp. 2d 410 (D.P.R. 2006)............................................................ 13

DLX, Inc. v. Kentucky,


381 F.3d 511 (6th Cir. 2004) ...................................................................... 65

Edelman v. Jordan,
415 U.S. 651 (1974) .................................................................................... 42

Ferrell v. N.C. Dep’t of Transp.,


407 S.E.2d 601 (N.C. Ct. App.),
aff'd, 435 S.E.2d 309 (N.C. 1991).......................................................... 33, 34

v
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Ferrell v. N.C. Dep’t of Transp.,


435 S.E.2d 309 (N.C. 1991)........................................................................ 64

Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,


527 U.S. 627 (1999) ............................................................................ passim

Fulcrum Int’l, Inc. v. Prince George Ctr. I, Inc.,


503 F. App’x 193 (4th Cir. 2012) ............................................................... 44

Garrett v. Illinois,
612 F.2d 1038 (7th Cir. 1980) .................................................................... 64

George-Khouri Family L.P. v. Ohio Dep’t of Liquor Control,


No. 04-3782, 2005 U.S. App. LEXIS 9807 (6th Cir. 2005) ...................... 39

Goldstein v. Moatz,
364 F.3d 205 (4th Cir. 2004) .................................................................... 39

Hairston v. N.C. Agric. & Tech. State Univ.,


No. 04-1203, 2005 U.S. Dist. LEXIS 20442
(M.D.N.C. Aug. 5, 2005) ........................................................................... 13

Harbert Int’l, Inc. v. James,


157 F.3d 1271 (11th Cir. 1998) ..................................................................... 64

Harper & Row Publishers, Inc. v. Nation Enters.,


471 U.S. 539 (1985) .................................................................................... 60

Henry v. Purnell,
652 F.3d 524 (4th Cir. 2011) ...................................................................... 60

Hohn v. United States,


524 U.S. 236 (1998) ..................................................................................... 9

Hollyday v. Rainey,
964 F.2d 1441 (4th Cir. 1992)............................................................... 52, 54

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Hutto v. S.C. Retirement Sys.,


773 F.3d 536 (4th Cir. 2014) ........................................................... 6, 63, 64

Idaho v. Coeur d’Alene Tribe,


521 U.S. 261 (1997) .................................................................................... 49

In re Creative Goldsmiths of Washington, D.C., Inc.,


119 F.3d 1140 (4th Cir. 1997) ..................................................................... 40

Innovative Med. Prods. v. Felment,


472 F. Supp. 2d 678 (M.D.N.C. 2006) ......................................................34

Interstate Petrol. Corp. v. Morgan,


249 F.3d 215 (4th Cir. 2001)...................................................................... 39

Jacobs v. Memphis Convention & Visitors Bureau,


710 F. Supp. 2d 663 (W.D. Tenn. 2010) .................................................... 13

John G. & Marie Stella Kenedy Mem’l Found. v. Mauro,


21 F.3d 667 (5th Cir. 1994) ....................................................................... 64

Johnson v. Jones,
515 U.S. 304 (1995) ............................................................................... 56, 57

Kennecott Copper Corp. v. State Tax Comm’n,


327 U.S. 573 (1946) ................................................................................... 44

Kensington Volunteer Fire v. Montgomery Cty.,


684 F.3d 462 (4th Cir. 2012)...................................................................... 53

Kimel v. Fla. Bd. of Regents,


528 U.S. 62 (2001) ...........................................................................28, 30, 31

Lane v. First Nat’l Bank,


871 F.2d 166 (1st Cir. 1989) ....................................................................... 26

vii
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Lane v. First Nat’l Bank,


737 F. Supp. 118 (D. Mass. 1989) ...............................................................27

Lane v. Pena,
518 U.S. 187 (1996) .................................................................................... 44

Lapides v. Bd. of Regents of Univ. Sys. of Ga.,


535 U.S. 613 (2002) .................................................................................... 13

Madison v. Virginia,
474 F.3d 118 (4th Cir. 2006) ............................................................... 42, 44

Merchant v. Bauer,
677 F.3d 656 (4th Cir. 2012) ..................................................................... 58

Mihalek Corp. v. Michigan,


814 F.2d 290 (6th Cir. 1987) ..................................................................... 26

Mktg. Info. Masters, Inc. v. Bd. of Trs. of the Cal. State Univ. Sys.,
552 F. Supp. 2d 1088 (S.D. Cal. 2008) ...................................................... 13

Nev. Dep’t of Res. v. Hibbs,


538 U.S. 721 (2003) ......................................................................... 22, 30, 31

New York v. Irving Tr. Co.,


288 U. S. 329 (1933) .................................................................................... 11

Pennhurst State Sch. & Hosp. v. Halderman,


465 U.S. 89 (1984) ...................................................................................... 11

Phillips v. LCI Int’l, Inc.,


190 F.3d 609 (4th Cir. 1999)..................................................................... 48

Poole Foundry & Mach. Co. v. NLRB,


192 F.2d 740 (4th Cir. 1951) ...................................................................... 46

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Richard Anderson Photography v. Brown,


852 F.2d 114 (4th Cir. 1988) ................................................................ 28, 29

Rogers v. Pendleton,
249 F.3d 279 (4th Cir. 2001)...................................................................... 61

Romero v. Cal. Dep’t of Transp.,


No. 08-8047, 2009 U.S. Dist. LEXIS 23193
(C.D. Cal. Mar. 12, 2009)........................................................................... 13

Rosciszewski v. Arete Assocs.,


1 F.3d 225 (4th Cir. 1993) ...........................................................................38

Santa-Rosa v. Combo Records,


471 F.3d 224 (1st Cir. 2006) .......................................................................38

Saucier v. Katz,
533 U.S. 194 (2001) ..................................................................................... 57

Seminole Tribe of Fla. v. Florida,


517 U.S. 44 (1996) .............................................................................. 4, 8, 16

Seven Up Pete Venture v. Schweitzer,


523 F.3d 948 (9th Cir. 2008) .................................................................... 64

Sheehan v. W. Va. Dep’t of Envtl. Prot.,


55 F. App’x 121 (4th Cir. 2003) ................................................................... 6

Skelly Oil Co. v. Phillips Petrol. Co.,


339 U.S. 237 (1952).................................................................................... 39

Smith v. State,
222 S.E.2d 412 (N.C. 1976) ................................................................... 33, 43

Sony Corp. of Am. v. Universal City Studios, Inc.,


464 U.S. 417 (1984) .............................................................................. 31, 59

ix
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South Carolina v. Katzenbach,


383 U.S. 301 (1966).....................................................................................30

State Oil Co. v. Khan,


522 U.S. 3 (1997) .......................................................................... 9, 14, 16, 17

Stewart v. Hunt,
598 F. Supp. 1342 (E.D.N.C. 1984) ............................................................43

Teachy v. Coble Dairies, Inc.,


293 S.E.2d 182 (N.C. 1982) ......................................................................... 33

Tenn. Student Assistance Corp. v. Hood,


541 U.S. 440 (2004) .................................................................................... 11

Tenney v. Brandhove,
341 U.S. 367, 377 (1951) .............................................................................. 53

Transcience Corp. v. Big Time Toys, LLC,


50 F. Supp. 3d 441 (S.D.N.Y. 2014)........................................................... 49

United States ex rel. Berge v. Bd. of Trs. of Univ. of Ala.,


104 F.3d 1453 (4th Cir. 1997) .....................................................................34

United States v. Cheek,


415 F.3d 349 (4th Cir. 2005) ....................................................................... 9

Verizon Md. v. Pub. Serv. Comm’n of Md.,


535 U.S. 635 (2001) .......................................................................... 5, 48, 51

Webster Cty. Lumber Co. v. Wayne,


61 F. App’x 63 (4th Cir. 2003) .................................................................. 39

Woelffer v. Happy States of Am., Inc.,


626 F. Supp. 499 (N.D. Ill. 1985) ............................................................. 26

Woolf v. Bowles,
57 F.3d 407 (4th Cir. 1995) ........................................................................30
x
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Constitutional Provisions

U.S. Const. art. I, § 8, cl. 8 .............................................................................. 9, 31

U.S. Const. art. IV, § 1 .......................................................................................... 11

Codified Statutes

17 U.S.C. § 301(a) ........................................................................................... 34, 38

17 U.S.C. § 511(a) ....................................................................................................3

N.C. Gen. Stat. § 124-4(13) ................................................................................. 59

N.C. Gen. Stat. § 132-1(a) .................................................................................... 61

N.C. Gen. Stat. § 132-1(b) ....................................................................................63

Legislative Materials

Copyright Remedy Clarification Act and Copyright Office Report on


Copyright Liability of States: Hearings Before the Subcomm.
on Courts, Intellectual Property, and the Administration of
Justice of the House Comm. on the Judiciary,
101st Cong., 1st Sess. (1989) ....................................................................... 15

The Copyright Remedy Clarification Act: Hearing Before the


Subcomm. on Patents, Copyrights and Trademarks of the
Senate Comm. on the Judiciary,
101st Cong., 1st Sess. (1989) ............................................................... passim

H.R. Rep. No. 101-282, pt. 1 (1989), as reprinted in


1990 U.S.C.C.A.N. 3949 ....................................................................... 14, 15

S. Rep. No. 101-305 (1990) .............................................................................. 14, 15

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RESTATEMENT OF ISSUES PRESENTED ON THE CROSS-APPEAL

I. The Copyright Remedy Clarification Act purports to abrogate the

states’ Eleventh Amendment immunity for alleged violations of federal

copyright law. In enacting the Clarification Act, Congress invoked

only its Article I power to regulate copyrights. The Supreme Court has

since held that Congress may not abrogate the Eleventh Amendment

under Article I. Was the district court right to conclude that the

Clarification Act was an invalid exercise of Congress’s Article I powers?

II. Before the events at issue here, the North Carolina Department of

Natural and Cultural Resources agreed to pay Frederick Allen a small

sum to settle his claim that the Department had infringed on a few of

his copyrighted works. The Department also agreed that Allen could

pursue remedies “provided by law or equity” if the Department

breached the settlement agreement. Was the district court right to

conclude that the Department did not expressly waive its sovereign

immunity for copyright claims?


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III. The Eleventh Amendment bars takings claims in federal court against

states if those claims can be heard in state court. North Carolina

courts routinely decide takings claims. Was the district court right to

hold that Allen’s takings claim must be decided in state court?

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SUMMARY OF THE ARGUMENT

In the decision below, the district court became the first court ever to

hold that the Copyright Remedy Clarification Act, 17 U.S.C. § 511(a) (2012),

was a valid exercise of Congress’s powers under Section 5 of the Fourteenth

Amendment. As the defendants discussed in their opening brief, that

decision misapplied the rules that govern congressional abrogation of

Eleventh Amendment immunity.

Allen defends the district court’s decision mainly by pointing to the

examples of copyright infringement that appear in the Clarification Act’s

legislative record. But those few examples do not show that Congress was

responding to widespread constitutional violations by states, as Section 5

requires. Indeed, many of the examples do not involve allegations of

infringement by states. Others rely on allegations that were shown to be

false before the Act was enacted. In any event, Congress did not consider

whether any of the examples showed infringement that rises to the level of a

constitutional violation.

Moreover, Allen’s examples do not address Congress’s failure to satisfy

the other aspects of the Section 5 test. They do not explain why Congress

did not consider alternative state-law remedies for infringement. Nor do

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they show why Congress did not tailor the Clarification Act to focus only on

constitutional violations.

In truth, the reason why the Clarification Act cannot satisfy Section 5

is because Congress did not pass the Act under that constitutional provision.

The legislative record makes clear that Congress enacted the Act under its

Article I power to regulate copyrights. The Supreme Court has held,

however, that Article I-based abrogations are invalid. See Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 72-73 (1996).

Blocked by Seminole Tribe, Allen asks this Court to overrule that

decision. But Allen has directed his argument to the wrong court. As the

district court correctly recognized, unless the Supreme Court decides to

reconsider Seminole Tribe, that case removes Article I as a vehicle for

abrogating states’ Eleventh Amendment immunity.

Allen also cross-appeals the district court’s ruling that the North

Carolina Department of Natural and Cultural Resources did not

unequivocally waive its Eleventh Amendment immunity. The district court,

however, was right that the Department did not unequivocally waive its

immunity for copyright claims when it entered a settlement agreement with

Allen’s company. In that agreement, the Department merely acknowledged

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that, if it “breache[d] the Agreement,” Allen could pursue remedies

“provided by law or equity,” such as suing for breach of contract. J.A. 90,

¶ 32. That breach-specific provision is not what the law would require: an

explicit waiver of the Department’s immunity for copyright claims.

With abrogation and waiver lacking, Allen next argues that his

copyright claims may proceed against the individual defendants under Ex

parte Young. But as the defendants’ opening brief shows, that exception to

Eleventh Amendment immunity does not apply here, because none of the

copyright violations alleged in Allen’s complaint are ongoing. Allen argues

that he can sue under Ex parte Young because the Department might be

engaging in other acts of infringement that are not named in Allen’s

complaint. That argument overlooks a fundamental limit on the Ex parte

Young doctrine: The relevant ongoing violation of law must be plausibly

alleged in the plaintiff’s complaint itself. Verizon Md. v. Pub. Serv. Comm’n

of Md., 535 U.S. 635, 645 (2001).

In addition, the individual defendants are also protected by two other

immunities: legislative immunity and qualified immunity. Legislative

immunity bars Allen’s copyright-preemption claim, because that claim is

based on the defendants’ roles in helping to enact a state statute. Qualified

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immunity bars the copyright-infringement claim because a reasonable

government official could have believed that the Department’s display of

Allen’s works was both fair use and authorized by contract.

Finally, in his cross-appeal, Allen asks this Court to overrule its recent

decision that the Eleventh Amendment requires takings claims to be decided

in state court. Hutto v. S.C. Retirement Sys., 773 F.3d 536, 552 (4th Cir. 2014).

Allen offers no reason for the Court to depart from its sound judgment—one

shared by every court of appeals that has considered the issue—that state

courts are the proper forums for takings claims against states.

For all these reasons, the defendants respectfully request that this

Court reverse the district court’s order to the extent that it denied their

motion to dismiss, and affirm the court’s dismissal of Allen’s takings claim.

ARGUMENT

Standards of Review on the Cross-Appeal

Allen’s cross-appeal challenges the district court’s dismissal of certain

claims because of sovereign immunity, as well as the district court’s ruling

that the State did not waive its immunity. Those questions are reviewed de

novo. Hutto, 773 F.3d at 542 (sovereign immunity); Sheehan v. W. Va. Dep’t

of Envtl. Prot., 55 F. App’x 121, 123-24 (4th Cir. 2003) (waiver).


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Discussion

I. Congress Did Not Validly Abrogate the States’ Eleventh


Amendment Immunity for Copyright Claims.

As the defendants showed in their opening brief, the Clarification Act

did not validly abrogate the states’ Eleventh Amendment immunity for

copyright claims. See Opening Br. 21-45. None of Allen’s arguments in

response change that conclusion.

First, the Supreme Court has directly foreclosed Allen’s argument that

the Copyright Clause in Article I grants Congress the power to abrogate.

Only the Supreme Court can reconsider that judgment.

Second, Allen is wrong that Congress enacted the Clarification Act

through its power under Section 5 of the Fourteenth Amendment to enforce

the Due Process Clause. The legislative materials that Allen cites prove that

Congress relied on Article I alone.

Moreover, even if Congress had invoked Section 5, Allen has not

shown that the Clarification Act was a valid exercise of that power.

Although Allen cites material from the Act’s legislative record, that material

fails the high standard that governs the Section 5 enforcement power.

Finally, Allen is wrong that the defendants forfeited their right to

appeal the district court’s decision to uphold Allen’s copyright-preemption


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claim. That claim seeks a declaratory judgment that the Copyright Act

preempts a state statute, so the claim arises under the Copyright Act. As the

opening brief explains, the Eleventh Amendment bars any claim against a

state if that claim depends on the Copyright Act.

A. Article I does not allow Congress to abrogate Eleventh


Amendment immunity.

As Allen acknowledges, the Supreme Court has ruled that Congress

may not use its Article I powers to authorize lawsuits against states. See

Allen Br. 33. Allen’s arguments for disregarding this limit on Congress’s

powers fall short.

1. Controlling Supreme Court precedent decides the


Article I issue in this case.

The Supreme Court has held explicitly that “[t]he Eleventh

Amendment restricts the judicial power under Article III, and Article I

cannot be used to circumvent the constitutional limitations placed upon

federal jurisdiction.” Seminole Tribe, 517 U.S. at 72-73.

The Court has specifically applied this ban on Article I-based

abrogation to the clause at issue here: Article I, Section 8, Clause 8, which

addresses Congress’s powers over patents and copyrights. Fla. Prepaid

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Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 636 (1999).

As the Court stated in Florida Prepaid, “Seminole Tribe makes clear that

Congress may not abrogate state sovereign immunity pursuant to its Article I

powers.” Id. That conclusion applies fully here. See U.S. Const. art. I, § 8, cl.

8; Opening Br. 22-25.

To try to overcome these principles, Allen argues that Seminole Tribe

and Florida Prepaid should be overruled. Allen Br. 33-42. Allen’s proposal

that this Court overrule binding Supreme Court precedent clashes with the

orderly administration of federal law. For the judicial system to function

properly, it must be “the Supreme Court’s prerogative alone to overrule one

of its precedents.” United States v. Cheek, 415 F.3d 349, 353 (4th Cir. 2005)

(quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).

Likewise, Allen’s claim that Seminole Tribe has been undermined by

later case law is for the Supreme Court alone to consider. “[Supreme Court]

decisions remain binding precedent until [the Supreme Court] see[s] fit to

reconsider them.” Hohn v. United States, 524 U.S. 236, 252-53 (1998).

In any event, as the next section shows, Allen is wrong that later

Supreme Court decisions have limited the holdings of Seminole Tribe and

Florida Prepaid in any way that matters here.

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2. The Supreme Court’s decision in Katz does not apply


here.

As shown above, Seminole Tribe and Florida Prepaid bar Congress from

using the Copyright Clause to abrogate Eleventh Amendment immunity. It

is true that the Supreme Court has upheld Congress’s Article I authority to

expose state agencies to certain bankruptcy proceedings. Cent. Va. Cmty.

Coll. v. Katz, 546 U.S. 356, 359 (2006).1 But that decision relied on the special

nature of bankruptcy jurisdiction and the unique constitutional history of

the Bankruptcy Clause. Neither of those features applies here.

First, as the Supreme Court explained in Katz, “[b]ankruptcy

jurisdiction, at its core, is in rem,” so “it does not implicate States’

sovereignty to nearly the same degree as other kinds of jurisdiction.” Id. at

362. Bankruptcy proceedings involve “the exercise of exclusive jurisdiction

over all of [a] debtor’s property”—jurisdiction that allows the court to

distribute the property to the debtor’s creditors and discharge remaining

debts. Id. at 363-64.

1
Specifically, the Court held that Congress has the power (i) to allow
debtors to file proceedings to discharge debts owed to state agencies and (ii)
to allow bankruptcy trustees to set aside preferential transfers to state
agencies. Katz, 546 U.S. at 349.
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Because a bankruptcy court’s jurisdiction “is premised on the debtor

and his estate, and not on the creditors,” even a bankruptcy discharge of

debts owed to a state “does not, in the usual case, interfere with state

sovereignty.” Id. at 370. For that reason, the Supreme Court has long held

that bankruptcy discharges bind state creditors. Id.; Tenn. Student

Assistance Corp. v. Hood, 541 U.S. 440, 448 (2004); New York v. Irving Tr.

Co., 288 U.S. 329, 333 (1933).

Here, in contrast, there is no dispute that a copyright-infringement

lawsuit involves in personam jurisdiction, not in rem jurisdiction. In this

lawsuit, for example, Allen has sued the State of North Carolina directly,

seeking money damages from the state treasury. J.A. 38. That kind of

lawsuit is squarely foreclosed by the Eleventh Amendment, which blocks a

“federal court . . . from awarding damages against the state treasury.”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).

There is another reason as well why Katz does not apply here: the

Bankruptcy Clause’s unique constitutional history. The framers of that

clause were focused on preventing states from imprisoning debtors for debts

that another state’s courts had already discharged. Katz, 546 U.S. at 366-69.

For that reason, the Constitutional Convention considered the Bankruptcy

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Clause in tandem with the Full Faith and Credit Clause, which requires

states to honor court decisions from other states. Id. at 368-69; see U.S.

Const. art. IV, § 1. By adopting those two clauses together, the “States agreed

in the plan of the Convention” to forgo “any sovereign immunity defense” to

bankruptcy jurisdiction. Katz, 546 U.S. at 377.

This unique constitutional history is why the Supreme Court held in

Katz that “the Bankruptcy Clause itself” abrogated sovereign immunity in

bankruptcy proceedings. Id. at 379. That distinction is what puts Katz

outside the Seminole Tribe line of cases. Id. at 362-63. In Katz, unlike this

case, “the relevant ‘abrogation’ is the one effected in the plan of the

Convention, not by statute.” Id. at 379.

Unlike the history of the Bankruptcy Clause, nothing in the history of

the Copyright Clause suggests that the framers intended for that clause to

abrogate state immunity for copyright claims. Indeed, the Supreme Court’s

decision in Florida Prepaid, which upheld Eleventh Amendment immunity

for patent claims, would make no sense if the states’ immunity for those

claims had already been disabled by the Patent and Copyright Clause. See

Florida Prepaid, 527 U.S. at 637-47.

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Every court that has considered states’ Eleventh Amendment

immunity for copyright claims since Katz has continued to hold that

Seminole Tribe and Florida Prepaid bar Congress from abrogating immunity

under the Copyright Clause.2 Allen offers no reason for this Court to depart

from the uniform judgments of those courts.3

B. The Clarification Act was not a valid exercise of Congress’s


Fourteenth Amendment enforcement power.

As the defendants’ opening brief discusses, the district court erred by

upholding the Clarification Act under Section 5 of the Fourteenth

Amendment. See Opening Br. 26-45. There are two reasons why.

First, Congress passed the Clarification Act under Article I, not Section

5. The Supreme Court has made clear that courts may not uphold an

2
Jacobs v. Memphis Convention & Visitors Bureau, 710 F. Supp. 2d 663,
669 (W.D. Tenn. 2010); Romero v. Cal. Dep’t of Transp., No. 08-8047, 2009
U.S. Dist. LEXIS 23193, at *9 (C.D. Cal. Mar. 12, 2009); Mktg. Info. Masters,
Inc. v. Bd. of Trs. of the Cal. State Univ. Sys., 552 F. Supp. 2d 1088, 1092 (S.D.
Cal. 2008); De Romero v. Inst. of P.R. Culture, 466 F. Supp. 2d 410, 414 (D.P.R.
2006); Hairston v. N.C. Agric. & Tech. State Univ., No. 04-1203, 2005 U.S.
Dist. LEXIS 20442, at *17 (M.D.N.C. Aug. 5, 2005).
3
Allen is also wrong that the Supreme Court’s decision in Lapides v.
Board of Regents of University System of Georgia, 535 U.S. 613 (2002), shows a
retreat from Seminole Tribe. See Allen Br. 38-39. Lapides did not involve
congressional abrogation at all. Instead, the case analyzed a waiver of
Eleventh Amendment immunity.
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Eleventh Amendment abrogation based on a power that Congress did not

invoke. See id. at 26-30.

Second, the Clarification Act was not a valid exercise of Congress’s

powers under Section 5 of the Fourteenth Amendment. See id. at 30-45.

As shown below, Allen has not cast doubt on either of these grounds

for reversing the district court’s decision.

1. Congress did not rely on the Fourteenth Amendment


when it enacted the Clarification Act.

A statutory abrogation can survive based on a particular congressional

power only when the statute’s text or legislative history shows that Congress

intended to exercise that power. Florida Prepaid, 527 U.S. at 642 n.7; see

Opening Br. 27-30.

Allen does not dispute this legal principle. Instead, he claims that

Congress did invoke its Section 5 enforcement power to pass the Clarification

Act. See Allen Br. 29. The House and Senate Reports that Allen cites,

however, refute that claim. See S. Rep. No. 101-305, at 7-8 (1990); H.R. Rep.

No. 101-282, pt. 1, at 7 (1989), as reprinted in 1990 U.S.C.C.A.N. 3949, 3955.

In those reports, Congress cited the Fourteenth Amendment only to

contrast it with the provision that Congress actually invoked: Article I. For

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example, the House Report applied pre-Seminole Tribe case law to conclude

that Congress had the power to enact the Clarification Act under “the

Copyright Clause of Article I.” H.R. Rep. No. 101-282, pt. 1, at 7. In reaching

that conclusion, the report drew a contrast between the Article I case law

and the Section 5 case law. Id. But at no point did the report suggest that

the Clarification Act had been enacted under Section 5.4

The Senate Report, too, cited the Fourteenth Amendment only to draw

a contrast with the constitutional question that Congress really had in mind:

whether Congress can abrogate Eleventh Amendment immunity under

Article I’s Copyright Clause. S. Rep. No. 101-305, at 7-8. Like the House

Report, the Senate Report analyzed pre-Seminole Tribe case law to conclude

that the Clarification Act was constitutional because “Congress does have the

power to abrogate when it legislates under . . . the Copyright Clause.” Id. at

8.

4
The House report also cited the testimony of two witnesses to support
its conclusion that Congress had the power to enact the Clarification Act.
H.R. Rep. No. 101-282, pt. 1, at 7 n.32. Both witnesses testified only that
Congress had the power to abrogate under Article I. Neither speaker
mentioned the Fourteenth Amendment. See Copyright Remedy Clarification
Act and Copyright Office Report on Copyright Liability of States: Hearings
Before the Subcomm. on Courts, Intellectual Property, and the Administration
of Justice of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 66, 90
(1989).
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Later history shows, however, that Congress misunderstood the scope

of its Article I abrogation power. Six years after the Clarification Act became

law, the Supreme Court decided Seminole Tribe, holding squarely that

Congress cannot abrogate the Eleventh Amendment under Article I.

Seminole Tribe, 517 U.S. at 72-73.

In sum, the congressional reports confirm that the Clarification Act

relies only on Article I, not on Section 5 of the Fourteenth Amendment.

Because Congress relied on an invalid source of constitutional authority, the

Clarification Act is unconstitutional. See Florida Prepaid, 527 U.S. at 642 n.7.

2. The Act is not a valid exercise of Section 5.

Even if Congress had enacted the Clarification Act under Section 5 of

the Fourteenth Amendment, the Act would still be unconstitutional. See

Opening Br. 32-44.

As the opening brief shows, the Clarification Act fails all three parts of

the Section 5 test for proving a valid abrogation of Eleventh Amendment

immunity:

 First, Congress did not identify a widespread pattern of

unconstitutional conduct by states. Instead, Congress acted

based on a handful of alleged state infringements of copyrights.


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None of those infringements violated the Constitution. See id. at

32-39.

 Second, Congress did not consider the state-law remedies that

serve as alternatives to abrogation. See id. at 39-42.

 Third, abrogating Eleventh Amendment immunity for all

copyright-infringement claims was not a narrowly tailored

answer to Congress’s concerns. See id. at 42-44.

In response to these points, Allen mainly argues that the Clarification

Act is constitutional because Congress was reacting to past copyright

infringement by states. Allen Br. 30-33. Allen’s amici go on to claim that the

Act can be justified based on Congress’s fears of future infringement, as well

as alleged infringement that postdates the Act’s enactment. See Oman Br. 21;

Copyright Alliance Br. 5-6.

As shown below, these claims are mistaken. In any event, they are not

enough to support the Clarification Act under Section 5.

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a. Congress did not identify a pattern of


unconstitutional conduct by states.

To enact valid legislation under Section 5, Congress must act in

response to state misconduct that is both widespread and unconstitutional.

Florida Prepaid, 527 U.S. at 645.

Allen attempts to meet this burden by listing fourteen examples of

states’ purported copyright infringements. See Allen Br. 21-23. That list falls

short for multiple reasons:

 The examples show mere unintentional copyright infringement.

Infringement of that type does not violate the Constitution.

 At least six of the examples are invalid because they do not even

allege copyright infringement by states.

 The remaining eight examples are too few to prove widespread

infringement, let alone widespread constitutional violations.

 In any event, the eight examples contain mere allegations, not

proven misconduct. Indeed, three examples cite cases where a

court had ruled that the alleged state infringement did not (or,

in one case, likely did not) occur.

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For these reasons, the Clarification Act cannot satisfy the first part of

Section 5’s abrogation test.

i. Allen’s examples do not show unconstitutional


conduct.

Allen’s brief tries to sidestep a critical point: Not all copyright

infringement by a state rises to the level of a Fourteenth Amendment

violation. For a constitutional violation to occur, a state must infringe

intentionally. Florida Prepaid, 527 U.S. at 643, 645. The Clarification Act,

however, covers even unintentional infringement. See Opening Br. 32-35.

Allen himself cites parts of the Clarification Act’s legislative record that

confirm that the Act allows lawsuits over innocent infringement—that is,

infringement based on a reasonable belief that a state’s use of a copyrighted

work is lawful.5

That distinction defeats the examples of alleged infringement that

Allen cites. In those examples, Congress did not even consider whether

states had infringed intentionally. See Allen Br. 21-23. This lack of focus on

5
Allen Br. 26 (citing The Copyright Remedy Clarification Act: Hearing
Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate
Comm. on the Judiciary, 101st Cong., 1st Sess. 80-81 (1989) [hereinafter Senate
Hearing]).
19
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intent shows that Congress did not enact the Clarification Act based on

copyright infringement that rose to the level of a due-process violation. See

Florida Prepaid, 527 U.S. at 645. For this reason, the Act fails the first part of

the Section 5 test. See Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th

Cir. 2000).

ii. Allen’s list does not describe widespread


copyright infringement by states.

Even if mere copyright infringement could support Congress’s use of

its Section 5 enforcement power, Allen has not shown that any copyright

infringement by states was pervasive enough to justify abrogation. See

Florida Prepaid, 527 U.S. at 640.

The fourteen examples of purported infringement that Allen cites

quickly unravel. As shown below, six of the examples do not even allege

infringement by states. Three others involve allegations that courts had

affirmatively rejected.

This sparse record of infringement does not show extensive state

misconduct, let alone intentional misconduct that violates the Constitution.

Indeed, even if one includes the three allegations that had been rejected by

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courts, the Clarification Act’s legislative record cited just eight instances of

possible copyright infringement by states.

When the Supreme Court encountered that same number of alleged

infringements in Florida Prepaid, the Court found it insufficient to justify

abrogation. Specifically, when the Court struck down the Patent Remedy

Act as unconstitutional, it ruled that “eight patent-infringement suits

prosecuted against the States” were a mere “handful” that cannot support an

abrogation of Eleventh Amendment immunity. Florida Prepaid, 527 U.S. at

640, 645.6 As the Court observed, “the fact that there are so few reported

cases” proved that the problem of state infringement was not widespread.

Id. at 640.

The same reasoning applies here. The Clarification Act’s legislative

record offers insufficient support for the conclusion that states were engaged

in widespread copyright infringement. The few instances of alleged state

infringement that Congress considered pale in comparison to the pervasive

unconstitutional conduct needed to justify Congress’s exercise of its

6
See also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
148 F.3d 1343, 1353-54 (Fed. Cir. 1998) (identifying eight cases, in the years
leading up to the relevant enactment, where a state had been accused of
patent infringement), rev’d, 527 U.S. at 645.
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Fourteenth Amendment enforcement powers. See, e.g., Nev. Dep’t of Res. v.

Hibbs, 538 U.S. 721, 730 (2003) (chronicling the “long and extensive history of

sex discrimination” that justified Congress’s abrogation of state immunity for

violations of family and medical leave); see also Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 371 n.7 (2001) (concluding that “around 50” allegations

of unconstitutional discrimination by states against the disabled were

insufficient under Section 5).7

In fact, as the next section describes, many of Allen’s examples do not

show alleged infringement by a state at all. And not one example involves a

judicial finding that a state had actually infringed a copyright.

a. Four of Allen’s examples show only private


infringement.

To support his claim of widespread copyright infringement by states,

Allen cites four examples that do not even involve state conduct. See Allen

Br. 22-23 (examples 2, 7, 8, 10). These examples all involve the claims of a

company called Maclean Hunter, which publishes the Red Book, a used-car

7 Even one of Allen’s supporting amici, Ralph Oman, acknowledged in


his testimony to Congress that copyright infringement by states was not
widespread. See Senate Hearing at 42. Mr. Oman repeats this concession in
his brief to this Court. See Oman Br. 21; see id. at 15 (describing state
infringement as “occasional[ ]”).
22
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valuation guide. The company complained that in four states, some of its

competitors—all private companies—were, without authorization, using its

car valuations to calculate insurance rates. Senate Hearing at 140-45.

Maclean Hunter did not allege that any state agency or official had

engaged in copyright infringement. Instead, it complained that four states

had adopted Red Book values as legal standards, prompting private infringers

in those states to claim that the values had passed into the public domain.

See id. at 141-42; see also CCC Info. Servs. v. Maclean Hunter Mkt. Reports, 44

F.3d 61, 73-74 (2d Cir. 1994) (allowing Maclean Hunter’s lawsuit against the

private infringers to proceed to trial).8

In short, the four examples of infringement identified by Maclean

Hunter did not even involve state conduct. Thus, those examples are not

evidence of infringement—let alone widespread infringement—by any state.

8
Ultimately, Maclean Hunter’s concerns proved unfounded, because the
courts rejected the private companies’ defenses. See Maclean Hunter, 44
F.3d at 74 (holding that “a state’s reference to a copyrighted work as a legal
standard for valuation” does not “result[ ] in loss of the copyright”). The
Eleventh Amendment therefore did not impede Maclean Hunter’s copyright-
infringement lawsuits against its private competitors. Id.
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b. Two of Allen’s examples describe only


hypotheticals.

In addition, two of Allen’s examples point to hearing testimony that

merely describes hypothetical ways in which states could infringe. In neither

case did the speaker claim that a state had actually engaged in the described

conduct. See Allen Br. 22-23 (examples 3, 7).

First, Allen incorrectly states that Kansas infringed copyrights by

selling “video and audiovisual products to local schools.” Id. at 22 (example

3). In the cited passage from the Senate Hearing, a representative of an

audiovisual company merely described hypothetical “ways that the program

in my catalogue could be threatened if state agencies” engaged in future

copyright infringement. Senate Hearing at 155 (emphasis added). The

speaker observed that the University of Kansas provided services similar to

his company’s. Id. at 155-56. Because of this competition, he worried that

“the University of Kansas could ” infringe on the company’s copyrights. Id. at

156 (emphasis added).

Second, Allen asserts that New Jersey refused to license a software

product because of the Eleventh Amendment. See Allen Br. 22-23 (example

7). The cited hearing testimony, however, does not show any actual

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infringement. In that testimony, a software-company representative

explained that New Jersey was using the company’s product “on a trial basis,

meaning they were attempting to decide whether or not they would install”

it. Senate Hearing at 95. The representative then expressed concern that

New Jersey might decide to infringe, because “[o]ver a month has now passed

and the State has yet to purchase” the product. Id. He did not state,

however, that any infringement had actually occurred.

Thus, the Kansas and New Jersey examples merely show hypothetical

speculation about ways states could infringe. They offer no evidence of any

copyright infringement by states, let alone evidence of widespread

intentional infringement.

c. Three of Allen’s examples had been


disproven.

Three of Allen’s other examples are also invalid, because they had

already been rejected by courts before the Clarification Act was enacted. See

Allen Br. 22 (examples 2, 4, 5).

First, Allen cites a lawsuit that alleged that Michigan “copied

photographs without permission, in an advertising program.” Allen Br. 22

(example 5). That claim was dismissed on the merits by the Sixth Circuit,

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which held that the state agency did not infringe on the copyright holder’s

work. Mihalek Corp. v. Michigan, 814 F.2d 290, 297 (6th Cir. 1987).

Second, Allen cites a complaint that Illinois infringed a private

company’s advertising materials. Allen Br. 22 (example 2). The district court

in that case dismissed the claim because it was barred by the Eleventh

Amendment. See Woelffer v. Happy States of Am., Inc., 626 F. Supp. 499, 504

(N.D. Ill. 1985). At an earlier stage in the case, however, the same court held

that the company was not likely to succeed on the merits of its claim because

it could not “establish[ ] the threshold requirement of infringement” by the

state. Woelffer v. Happy States of Am., Inc., No. 85 C 3301, 1985 U.S. Dist.

LEXIS 20762, at *3 (N.D. Ill. Apr. 12, 1985).

Third, Allen cites a complaint that Massachusetts “copied compilations

of financial data” created by a bank. Allen Br. 22 (example 4). The First

Circuit held that the Eleventh Amendment barred this claim against the

state itself. See Lane v. First Nat’l Bank, 871 F.2d 166, 167 (1st Cir. 1989).

However, the First Circuit allowed the lawsuit to proceed against an

individual state official. Id. at 174. When that claim went to trial on the

merits, “the jury found that [the state had] made no use of” the company’s

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financial documents, and therefore had not infringed. Lane v. First Nat’l

Bank, 737 F. Supp. 118, 119 (D. Mass. 1989).

In sum, each of these allegations of infringement proved unfounded.

Thus, these allegations show no misconduct at all, let alone widespread,

intentional copyright infringement.

d. The remaining five examples do not show


proven infringement by a state.

After the above discussion, all that remain are five allegations of

copyright infringement by states. But even these five examples are mere

allegations. They do not describe proven infringement.

Three of the examples rely on nothing more than hearsay statements

from a company representative to Congress. See Allen Br. 22-23 (examples 6,

9, 12). The weakness of this evidence undercuts the weight of these

examples in the abrogation analysis.9 When measuring whether a

9
Two of these examples arise from comments by the Motion Picture
Association of America. Allen Br. 23 (examples 9, 12). In its comments, the
association claimed that prisons in Wisconsin and North Carolina were
showing movies to inmates without paying copyright-license fees.
Attachment to Brief of Ralph Oman at 14-15, Doc. 54.

The association stated that it had sued Wisconsin and had won an
injunction, but no lawsuit was apparently filed against North Carolina. Id.

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constitutional problem is widespread, the Supreme Court has discounted

this kind of “anecdotal evidence”—evidence “clipped from floor debates and

legislative reports.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 82, 89 (2001)

(holding that abrogation of Eleventh Amendment immunity for age-

discrimination claims was invalid). Instead, the Court has focused on

“reported cases” in which relevant claims were actually “prosecuted against

the states.” Florida Prepaid, 527 U.S. at 640.

Here, Allen cites only two reported cases where a state was credibly

accused of copyright infringement. See BV Eng’g v. Univ. of Cal., Los Angeles,

858 F.2d 1394 (9th Cir. 1998); Richard Anderson Photography v. Brown, 852

F.2d 114 (4th Cir. 1988).

Even these two isolated cases do not show constitutional violations.

Neither case necessarily shows intentional infringement.

The association stated that North Carolina was reportedly acting based
on a memo from a lawyer at the North Carolina Department of Justice. Id. at
14. After a diligent search, counsel for the defendants have been unable to
locate this memo or any other information about the alleged events.

In any event, these examples do not show widespread infringement by


states. Indeed, the association acknowledged that most states agree to
obtain licenses to show movies to inmates. Id. at 13.

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In any event, both of these cases arose from preexisting contractual

relationships between state agencies and copyright holders. See BV

Engineering, 858 F.2d at 1395; Richard Anderson Photography, 852 F.2d at 116.

Under these circumstances, the copyright holders could have protected their

interests by bargaining for an explicit waiver of the state’s sovereign

immunity. The legislative history of the Clarification Act acknowledges this

opportunity for copyright holders.10

Thus, even Allen’s two best examples do not show that the

Clarification Act was enacted to remedy widespread and persisting

unconstitutional state conduct. Indeed, these examples show an alternative

to abrogation of the states’ Eleventh Amendment immunity.

iii. The Clarification Act cannot be upheld based


on fears of future infringement.

Allen’s amici seek to shift the focus away from events that preceded

the Clarification Act by discussing events that could, or allegedly did,

10
See Senate Hearing at 152 (testimony of William Taylor) (“we have
required state institutions to obtain an effective waiver of their rights under
the Eleventh Amendment before contracting” to sell them products); id. at
95 (testimony of David Eskra) (same). Copyright holders might respond that
bargaining for sovereign-immunity waivers “slows the [contracting] process.”
Id. Mere inconvenience for contracting parties, however, cannot justify
abrogating the states’ Eleventh Amendment rights.
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happen later. Those efforts fail as a matter of law. The Supreme Court has

made clear that where, as here, a statute addresses property interests,

Section 5 requires Congress to assemble a record of past constitutional

violations by states.

Amicus Ralph Oman opines, for example, that copyright holders

testified in favor of the Clarification Act because they feared that states could

infringe copyrights in the future. Oman Br. 12. The Supreme Court,

however, has rejected fear of future infringement as a proper basis for

abrogating the Eleventh Amendment. Florida Prepaid, 527 U.S. at 641. To

justify a nationwide abrogation, Congress must amass “evidence that

unremedied . . . infringement by States had become”—that is, had already

become—“a problem of national import.” Id. (discussing patent

infringement).

To be sure, Congress can sometimes use Section 5 to deter future

constitutional violations. Hibbs, 538 U.S. at 727-28. But prophylactic

legislation is allowed only when it addresses state violations of fundamental

rights: violations such as discrimination based on gender or race. Id. at 735

(gender); South Carolina v. Katzenbach, 383 U.S. 301, 308-13 (1966) (race).

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In contrast, when Congress acts to protect rights that are not

fundamental—that is, rights whose infringement does not trigger

heightened scrutiny under Fourteenth Amendment doctrine—a much

stricter test applies. Hibbs, 538 U.S. at 735-36. In that situation, Congress

may abrogate Eleventh Amendment immunity only to remedy a widespread

pattern of actual, past constitutional violations. Id. Even measures to bar

“state discrimination against the disabled or the elderly”—measures that

undergo rational-basis review—require a record of actual, pervasive

unconstitutional conduct by states. Id. at 735; see Garrett, 531 U.S. at 371-72

(applying this strict rule to measures against disability discrimination);

Kimel, 528 U.S. at 89 (same for measures against age discrimination).

That requirement of past, pervasive, unconstitutional conduct applies

here. Copyrights, like other property interests, are non-fundamental

interests. The Supreme Court has already reached this conclusion regarding

patents by discounting future infringement as a proper basis for abrogation.

See Florida Prepaid, 527 U.S. at 641. The rule for copyrights should be the

same, because patents and copyrights stem from the same clause of the

Constitution. See U.S. Const. art. I, § 8, cl. 8; Sony Corp. of Am. v. Universal

City Studios, Inc., 464 U.S. 417, 439 (1984) (noting the “kinship between

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patent law and copyright law” because of their common constitutional

origin).

The arguments of the Copyright Alliance fare no better. The Alliance

reports infringement allegations that date from 2001 and 2002—more than a

decade after the Clarification Act was enacted. See Alliance Br. 5-6.11

These allegations of post-enactment infringement cannot support the

Clarification Act, for two reasons. First, they do not show unconstitutional

conduct. The Alliance does not even claim that any of the alleged

infringements were intentional. See id. Second, these allegations are

irrelevant, because none of them were before Congress when Congress

considered the Clarification Act. See Opening Br. 36-37; see also Garrett, 531

U.S. at 368 (focusing on “the legislative record” of the relevant statute);

Kimel, 528 U.S. at 89 (same); Florida Prepaid, 527 U.S. at 645 (same).

* * *

In sum, the Clarification Act fails the first part of the Fourteenth

Amendment test, because Congress did not enact the statute in response to a

widespread pattern of constitutional violations by states.

11
The Alliance also describes allegations by Getty Images, but does not
report the date of—or any basis for—the allegations. Alliance Br. 7-8.
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b. Congress did not adequately consider alternatives


to abrogation.

The Act also fails the second part of the Fourteenth Amendment test:

Congress did not sufficiently consider whether state-law alternatives could

achieve the same result as abrogation. See Opening Br. 39-42.

Allen does not deny that a number of state-law claims can remedy

conduct that also amounts to copyright infringement. Indeed, even in this

lawsuit, Allen has filed a claim for unfair and deceptive trade practices, and a

takings claim, based on the same allegations that underlie his copyright

claims. See J.A. 36-37, ¶¶ 80, 84.

During the legislative process, Congress did not address state-law

remedies like these as alternatives to blanket abrogation of Eleventh

Amendment immunity. Had Congress considered these remedies, it would

have learned that many of them are viable alternative claims for aggrieved

copyright holders.

At least in some circumstances, North Carolina has waived sovereign

immunity in its own courts for a number of possible substitute claims,

including claims for breach of contract, takings, and some torts. See Teachy

v. Coble Dairies, Inc., 293 S.E.2d 182, 185 (N.C. 1982) (torts); Smith v. State,

222 S.E.2d 412, 423-24 (N.C. 1976) (breaches of contract); Ferrell v. N.C. Dep’t
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of Transp., 407 S.E.2d 601, 604 (N.C. Ct. App.) (takings), aff’d, 435 S.E.2d 309

(N.C. 1991).

Although the Copyright Act might preempt some of these state-law

claims, many of them survive preemption.12 See 17 U.S.C. § 301(a). Indeed,

takings claims have constitutional stature and therefore cannot be

preempted.

But even if no state-law remedies in this area survived preemption,

Congress still would have had an alternative to abrogation: it could have

made the Copyright Act non-preemptive (entirely or on certain issues).

Congress failed even to consider this alternative to Eleventh Amendment

abrogation.

To try to save the Clarification Act, Allen vainly tries to defend

Congress’s failure to consider making the Copyright Act non-preemptive.

He argues that this alternative to abrogation could have undermined the

uniformity of federal copyright law. Allen Br. 32. In the closely related area

of patent law, however, the Supreme Court has already rejected that

12
See, e.g., United States ex rel. Berge v. Bd. of Trs. of Univ. of Ala., 104
F.3d 1453, 1463 (4th Cir. 1997) (some conversion claims not preempted);
Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988) (same for
breach-of-contract claims); Innovative Med. Prods. v. Felment, 472 F. Supp.
2d 678, 684 (M.D.N.C. 2006) (same for unfair-competition claims).
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uniformity argument. In Florida Prepaid, the Court acknowledged “[t]he

need for uniformity in the construction of patent law,” but held that this

concern does not justify disregarding an alternative to abrogating Eleventh

Amendment immunity. 527 U.S. at 645. The same reasoning applies here.

In sum, because Congress did not adequately consider state-law

alternatives to abrogation, the Clarification Act does not satisfy the second

part of the test for a valid abrogation based on Section 5.

c. The Clarification Act was not narrowly tailored.

The Clarification Act also fails the third part of the Section 5 test,

which requires that Congress’s chosen remedy be proportional to the scope

of the problem Congress sought to address. See Opening Br. 42-44.

Allen mainly argues that the Clarification Act meets this

proportionality requirement because copyright infringement by states was

allegedly widespread. See Allen Br. 30-32. Even if that were true, however,

Allen cannot explain why Congress did not limit any abrogation to the

subset of infringement that violates the Constitution—intentional

infringement. See Florida Prepaid, 527 U.S. at 643, 645.

To focus on unconstitutional infringement, the Clarification Act could

have been tailored in any number of ways. For example, it could have been
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limited to “nonnegligent infringement or infringement authorized pursuant

to state policy.” Id. at 647. Indeed, in Florida Prepaid, the Supreme Court

held that the Patent Remedy Act was not narrowly tailored because it lacked

such a limit. Id. Moreover, here, as in the patent context, Congress did not

limit its abrogation effort to “States with questionable remedies or a high

incidence of infringement.” Id.

Because Congress did not tailor the Clarification Act in any of these

ways, the Act fails the proportionality element of the Section 5 test.

For all of these reasons, the Clarification Act is unconstitutional.

C. The Eleventh Amendment bars both of Allen’s copyright-


related claims.

Because the Clarification Act is not a valid abrogation of the Eleventh

Amendment, that amendment bars both of Allen’s copyright-related claims:

count I, which seeks a declaration that a state statute is preempted by the

Copyright Act, and count II, which accuses the defendants of copyright

infringement. See Opening Br. 22-45.

Allen argues that the State has forfeited its appeal from the district

court’s decision to sustain count I, the copyright-preemption claim. See

Allen Br. 62-63. That argument misreads the defendants’ opening brief.

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The opening brief makes clear that the defendants’ arguments against

the Clarification Act apply to both of Allen’s copyright-related claims. Those

claims, after all, were the only claims that the district court sustained. 244

F. Supp. 3d 525, 545-46 (E.D.N.C. 2017) (J.A. 281). For example, the brief

explains that:

 sovereign immunity “defeats Allen’s complaint,” Opening Br. 17;

 “the district court erred by holding that Eleventh Amendment

immunity does not bar this lawsuit,” id.;

 “multiple immunities bar Allen’s claims,” id. at 20;

 “the State is immune from Allen’s claims,” id. at 45; and

 the defendants “request that this Court reverse the parts of the

district court’s order that denied their motion to dismiss,” id. at

20, 70.

Notably, moreover, the defendants’ opening brief never states or implies that

its arguments against abrogation are limited to count II of Allen’s complaint.

See id. at 22-45.

In addition, Allen’s waiver argument overlooks the origin of count I of

the complaint. A request for a declaratory judgment that a state law is

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preempted by the Copyright Act—the request that Allen makes in count I—

arises under the Copyright Act’s preemption provision. See 17 U.S.C.

§ 301(a); J.A. 33-34, ¶¶ 62-69.

Allen’s own complaint makes clear that the copyright-preemption

claim arises under the Copyright Act. Count I of the complaint seeks a

declaration that a North Carolina statute is invalid under the Copyright Act’s

preemption provision, section 301(a). J.A. 33-34, ¶ 65 (quoting 17 U.S.C.

§ 301(a)). That claim of preemption is completely entangled with

substantive copyright law. Section 301(a) preempts only those state laws that

grant rights “equivalent to any exclusive rights within the scope of federal

copyright.” Rosciszewski v. Arete Assocs., 1 F.3d 225, 229 (4th Cir. 1993)

(emphasis added). Because of this entanglement with substantive copyright

law, a claim that seeks a declaration of copyright preemption “arises under

the Copyright Act.” Santa-Rosa v. Combo Records, 471 F.3d 224, 227 (1st Cir.

2006) (addressing a claim that sought a declaration of rights under a

different provision of the Copyright Act).

The fact that Allen has cited the Declaratory Judgment Act in his

copyright-preemption claim does not make that claim any less copyright-

related. The Declaratory Judgment Act “does not confer jurisdiction.”

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Interstate Petrol. Corp. v. Morgan, 249 F.3d 215, 221 n.7 (4th Cir. 2001) (en

banc). It allows federal courts to fashion a declaratory remedy, but only if

the federal courts already have jurisdiction to decide a given claim. Webster

Cty. Lumber Co. v. Wayne, 61 F. App’x 63, 65 (4th Cir. 2003); accord Skelly Oil

Co. v. Phillips Petrol. Co., 339 U.S. 667, 671-72 (1952). Here, if there were

federal jurisdiction over Allen’s copyright-preemption claim, it would come

from section 301(a) of the Copyright Act.13

As Allen admits, however, a Copyright Act-based claim against a state

agency is barred by the Eleventh Amendment—barred, that is, unless the

Clarification Act is a valid abrogation of the Eleventh Amendment. See Allen

Br. 16-18. Thus, the Clarification Act is the linchpin of Allen’s copyright-

related claims. By attacking the validity of the Clarification Act, the

defendants have attacked Allen’s claims that depend on that statute: his

preemption claim and his infringement claim. See Opening Br. 22-45.

13
Moreover, even if Allen’s claim were construed as arising directly
under the Declaratory Judgment Act, it would still fail. That statute “does
not explicitly authorize suits against states and therefore cannot be used to
circumvent the Eleventh Amendment.” George-Khouri Family L.P. v. Ohio
Dep’t of Liquor Control, No. 04-3782, 2005 U.S. App. LEXIS 9807, at *8-9 (6th
Cir. 2005); see Goldstein v. Moatz, 364 F.3d 205, 219 (4th Cir. 2004) (“[i]f a
declaratory judgment proceeding actually constitutes a suit against the
sovereign, it is barred absent a waiver” or abrogation).
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Finally, even if there were any doubt on preservation, Allen’s

arguments still would not defeat the defendants’ Eleventh Amendment

immunity. “Like other issues relating to subject-matter jurisdiction,

Eleventh Amendment immunity may be asserted at any time in litigation.”

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 481

(4th Cir. 2005). Under this rule, a state cannot abandon its immunity under

the Eleventh Amendment unless a plaintiff meets the stringent test for

showing a substantive waiver of that immunity. See In re Creative

Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1144 (4th Cir. 1997)

(considering Eleventh Amendment defense raised for the first time on

appeal). As the next section shows, no substantive waiver has occurred here.

For all of these reasons, the defendants’ Eleventh Amendment

immunity stands intact.

II. The Department Did Not Waive Its Sovereign Immunity for
Copyright Claims.

Here, the district court held that the Department did not substantively

waive its Eleventh Amendment immunity. 244 F. Supp. 3d at 532-33 (J.A.

258-59). Allen’s cross-appeal from that ruling fails.

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Eleventh Amendment waivers “must be unequivocally expressed.”

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,

682 (1999). Under that principle, federal courts apply a strong presumption

against waiver. Here, that presumption confirms that the Department did

not waive its immunity for copyright claims when it agreed to settle a variety

of disputes related to the Queen Anne’s Revenge. The settlement agreement

merely recognized that the parties could enforce the settlement agreement

itself.

Allen’s theory of implied waiver also fails. Not only is waiver by

implication forbidden in the Eleventh Amendment context, but Allen’s

theory disregards key aspects of the settlement agreement. Among other

points, the agreement contemplated that the Department might make

Allen’s works available to the public.

In sum, because the Department did not unequivocally express any

consent to be sued on copyright claims, the district court correctly held that

no waiver occurred here.

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A. The settlement agreement does not unequivocally waive


sovereign immunity.

A contract can waive a state’s Eleventh Amendment immunity only by

stating a waiver “by the most express language or by such overwhelming

implication from the text as [will] leave no room for any other reasonable

construction.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985)

(quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). Because of this

requirement, federal courts “indulge every reasonable presumption against

waiver.” College Savings Bank, 527 U.S. at 682; see also Madison v. Virginia,

474 F.3d 118, 131 (4th Cir. 2006) (any “ambiguities are construed in favor of

immunity”).

Under these principles, the district court was right to hold that the

Department did not waive its Eleventh Amendment immunity. 244 F. Supp.

3d at 533 (J.A. 259). Nothing in the 2013 settlement agreement that Allen

cites is a clear and unequivocal waiver of the Department’s Eleventh

Amendment immunity. That agreement—which involved the Department,

Allen’s company (Nautilus), and the separate company that discovered the

Queen Anne’s Revenge (Intersal)—does not mention the Department’s

Eleventh Amendment immunity at all. See J.A. 84-90.

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Instead, the settlement agreement states only that the parties may sue

for breach of that same agreement. The relevant provision is titled “Effect of

Breach of Agreement.” J.A. 90, ¶ 32. It says that if any party “breaches this

Agreement,” the aggrieved party may pursue “remedies provided by law or

equity.” J.A. 90, ¶ 32.

This breach-specific language is miles away from an express waiver of

the Department’s Eleventh Amendment immunity for copyright claims. It

simply reaffirms the parties’ right to sue for breach of the settlement

agreement itself.14 Here, however, Allen has not sued for breach of that

agreement. See J.A. 33-38.

The Supreme Court has repeatedly held that generic consent-to-suit

provisions like the one Allen cites here do not waive Eleventh Amendment

immunity. For example, the Court has held that states do not waive

immunity merely by agreeing to “sue and be sued,” College Savings Bank, 527

U.S. at 676, or by consenting to be sued “in any court of competent

14
North Carolina has waived sovereign immunity for breach-of-contract
claims, but that waiver is limited to lawsuits filed in its own courts. Smith,
222 S.E.2d at 423-24; see also Stewart v. Hunt, 598 F. Supp. 1342, 1351
(E.D.N.C. 1984) (holding that North Carolina’s waiver of sovereign immunity
for contract claims “does not apply to eleventh amendment immunity
[because] the state has provided a remedy in its own courts”).
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jurisdiction,” Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577-

79 (1946). As these decisions confirm, a state does not “unequivocally

express” an intent to waive Eleventh Amendment immunity simply by

acknowledging that it can be sued for breach of a settlement agreement.

College Savings Bank, 527 U.S. at 676.

Finally, even if any waiver had occurred here, it would be limited to

contract claims. Courts “strictly construe the scope of any alleged waiver in

favor of the sovereign.” Madison, 474 F.3d at 131; accord Lane v. Pena, 518

U.S. 187, 192 (1996). For example, this Court has affirmed a district court’s

ruling that a waiver of immunity for contract claims did not extend even to

quasi-contractual theories of relief, such as promissory estoppel. Fulcrum

Int’l, Inc. v. Prince George Ctr. I, Inc., 503 F. App’x 193, 195 (4th Cir. 2012).

Similar reasoning bars Allen’s argument that the Department waived its

immunity for copyright claims by stating that Allen could sue if the

Department “breaches this Agreement.” J.A. 90, ¶ 32.

In sum, the district court was right to hold that the Department did

not waive its Eleventh Amendment immunity for copyright claims.

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B. Allen’s implied-waiver theory misreads the settlement


agreement.

Allen also argues that when the Department agreed to settle his past

accusations of infringement, it impliedly agreed to be sued for copyright

infringement. Allen Br. 60-62. That waiver-by-implication theory fails as a

matter of law. Sovereign-immunity waivers “cannot be implied but must be

unequivocally expressed.” College Savings Bank, 527 U.S. at 682.

Moreover, even if implied waivers were allowed, Allen’s waiver theory

would still fail on this record. Allen’s theory overlooks at least three key

aspects of the settlement agreement.

First, nothing in the agreement bars the Department from using

Allen’s works. To the contrary, the agreement contemplates future use. It

allows the Department to retain large volumes of Allen’s archival footage and

photographs. J.A. 88, ¶ 21. The agreement also allows the Department to

make these items “available to the public” as public records. J.A. 88, ¶ 21; see

infra pp. 63-65. By recognizing Allen’s works as public records, the

agreement contradicts any argument that Allen could sue the Department

for displaying them publicly.

Second, in the settlement agreement, the Department did not concede

Allen’s earlier claims of infringement. Although the Department agreed to


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pay Allen’s company $15,000 “for any copyright violations” the Department

might have committed, the parties also agreed that this payment could not

be construed as “an admission of any wrongdoing.” J.A. 84, 89, ¶¶ 2, 22.

Indeed, as a matter of law, a party’s decision to settle is “not an admission of

past liability.” Poole Foundry & Mach. Co. v. NLRB, 192 F.2d 740, 743 (4th Cir.

1951). Under these principles, the Department did not admit that any use of

Allen’s works was wrongful. That point destroys the premise of Allen’s

implied-waiver argument. See Allen Br. 60.

Third, only a small part of the agreement even addressed Allen’s

accusations of infringement. Most of the agreement had nothing to do with

Allen or his company. Instead, the agreement mainly focused on clarifying

the respective rights of the Department and Intersal, the company that

discovered the Queen Anne’s Revenge. See J.A. 84-90. For example, about

half of the agreement’s provisions addressed the Department’s and Intersal’s

rights to commercial replicas and promotional opportunities involving the

shipwreck. See J.A. 85-87, ¶¶ 4-16. Because the agreement barely addressed

Allen’s works, the agreement’s breach-specific language does not impliedly

include copyright claims like those here.

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As these points show, the settlement agreement paid only glancing

attention to Allen’s infringement allegations. The agreement does not state

that the Department’s prior use of Allen’s works was wrongful. Moreover, in

the agreement, the Department secured the right to make those works

available to the public under the state’s existing public-records law. J.A. 88,

¶ 17. Allen is therefore wrong that the agreement can be read as impliedly

waiving the Department’s Eleventh Amendment immunity for future

copyright claims.

III. The Ex Parte Young Exception to Eleventh Amendment


Immunity Does Not Apply Here.

As a perceived backstop for his abrogation and waiver theories, Allen

argues that his copyright claims survive against the individual defendants

under the Ex parte Young exception to Eleventh Amendment immunity. See

Allen Br. 43-44. As the opening brief explains, however, Allen’s argument

fails because all six of the works that Allen’s complaint calls infringing have

been removed from the public domain. See Opening Br. 46-49.

Allen does not deny this point. See Allen Br. 47. Nor could he: The

web addresses that once displayed these works—web addresses that the

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complaint reproduces in full—confirm that Allen’s works are no longer on

public display.15 See J.A. 28, ¶ 44.

To try to overcome this problem, Allen argues that his claims satisfy Ex

parte Young because the Department might be engaging in other acts of

infringement—acts that appear nowhere in his complaint. See Allen Br. 48-

49. That argument overlooks a fundamental limit on the Ex parte Young

doctrine: The allegedly “ongoing violation of federal law” must appear in

“the complaint.” Verizon, 535 U.S. at 645 (quoting Idaho v. Coeur d’Alene

Tribe, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring)).

15
Allen implies that this Court cannot consider the content of the
websites he listed in his complaint. Allen Br. 45-46. To the contrary, on an
appeal from a Rule 12 motion, this Court may consider any materials that a
plaintiff’s complaint incorporates by reference. Phillips v. LCI Int’l, Inc., 190
F.3d 609, 618 (4th Cir. 1999); see Opening Br. 47 n.13. Phillips, for example,
involved a news article that the plaintiffs had “explicitly relied on” in their
complaint, but had “failed to attach.” 190 F.3d at 618. Because the article
“was integral to and explicitly relied on in the complaint,” this Court
considered the article in its entirety. Id.

Allen also errs when he argues that the district court made an
evidentiary ruling to exclude the websites. See Allen Br. 45-47. Instead, the
district court never addressed the websites. Because the court held that
Eleventh Amendment immunity did not apply here, it did not even discuss
the Ex parte Young exception to that immunity. See 244 F. Supp. 3d at 535
(J.A. 262). The court thus did not consider how the websites affected the Ex
parte Young analysis.
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At the time he filed his complaint, Allen alleged an ongoing violation

by naming six allegedly infringing works, saying where those works were

publicly displayed, and specifying the precise location in the works where

Allen’s copyrighted material appeared. See J.A. 28, ¶ 44. Allen does not deny

that the Department is no longer displaying those six works.

For any other works, the complaint does not allege enough facts to

give the defendants fair notice of any alleged infringements. See, e.g.,

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a plaintiff to state a

copyright-infringement claim, the law under Iqbal requires the plaintiff to

identify, among other things, “specific original works” that are protected by

copyright and “by what acts . . . the defendant infringed.” Transcience Corp.

v. Big Time Toys, LLC, 50 F. Supp. 3d 441, 449 (S.D.N.Y. 2014).

This Court’s decision in Chambers v. Amazon.com enforced these

Iqbal-based requirements. 632 F. App’x 742, 744 (4th Cir. 2015). In that case,

a musician alleged that the defendants had made “numerous copies of [his]

CD” available for sale, but he did not back up that assertion with specific

allegations on how the infringement occurred. Id. As this Court recognized,

merely identifying a copyrighted work and generally asserting that the

defendant infringed it lacks the specificity required by Iqbal. See id.; see also

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Iqbal, 556 U.S. at 678 (holding that a complaint does not state a plausible

claim if it “tenders naked assertions devoid of further factual enhancement”).

Allen’s complaint has the same infirmity. It only alludes to the

possibility of infringements other than the listed six, using the phrase “at

least.” J.A. 28, ¶ 44. That language fails under Iqbal because it does not

allege any specific facts to support Allen’s vague allusion to other

infringement.

In a final attempt to imply an ongoing violation, Allen’s brief in this

Court hints at a completely new infringement claim. That brief includes a

computer screenshot that displays part of an unspecified website. Allen Br.

48. The image depicts a child looking at a museum exhibit, along with text

that encourages the public to visit the museum. Although Allen implies that

this image infringes his copyrighted work, he does not identify the website

or even explain which part of the image allegedly contains his work. See id.16

16
In fact, the image shows the website of the Department’s maritime
museum. Out of an abundance of caution, the museum has removed the
image from its website. The physical exhibit shown in the image once
included a photograph taken by a representative of Allen’s company. That
photograph was removed from the exhibit in June 2013, long before Allen
filed this lawsuit.
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The law bars that vague argument. When a plaintiff tries to use Ex

parte Young to survive a motion to dismiss, he must rely on allegations that

appear in his complaint itself. Verizon, 535 U.S. at 645. Here, any

infringement that is plausibly alleged in Allen’s complaint has ended.

Because Allen’s complaint does not describe any ongoing violation of federal

law, the Ex parte Young exception does not apply here.

IV. Legislative Immunity Bars Lawsuits Against Government


Officials for Helping to Enact a Statute.

Allen’s copyright-preemption claim against the individual defendants

also fails because of legislative immunity.

Legislative immunity bars lawsuits against government officials based

on their involvement in the legislative process. Because of that immunity,

the district court erred by declining to dismiss Allen’s copyright-preemption

claim against the individual defendants. That claim relies solely on the

individuals’ efforts to get a state statute enacted. See Opening Br. 49-53; J.A.

30-31, ¶¶ 50, 53-54.17

17
Allen does not argue that the district court’s decision to “defer[ ]”
ruling on legislative immunity is anything other than a denial of the
immunity. 244 F. Supp. 3d at 541 (J.A. 272). Nor could he. Legislative
immunity frees government officials not only from liability, but also from the

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In response, Allen claims that legislative immunity applies only to

legislators and to officials whose functions are “equivalent to [the functions]

of legislators.” Allen Br. 52. That is not the law. As the Supreme Court has

held expressly, “officials outside the legislative branch are entitled to

legislative immunity when they perform legislative functions,” such as

proposing legislation and lobbying for its passage. Bogan v. Scott-Harris, 523

U.S. 44, 54 (1998); see id. at 47, 55.

Here, Allen’s complaint makes clear that the challenged conduct was

part of the legislative process.

For Governor Cooper, the complaint states that the Governor’s

predecessor signed the bill that became the statute Allen attacks here. J.A.

costs and burdens of litigation. Hollyday v. Rainey, 964 F.2d 1441, 1443 (4th
Cir. 1992). Here, because the district court’s deferral of a ruling on legislative
immunity exposes the individual defendants to those costs and burdens, it
was an “implicit denial” that this Court may review now. Behrens v. Pelletier,
516 U.S. 299, 303, 307 (1996).

Moreover, Allen misreads the district court’s opinion when he claims


that the court called for factfinding before it could rule on legislative
immunity. See Allen Br. 52. The court wrote only that “based on the
allegations in the amended complaint, a ruling on whether legislative
immunity applies is premature.” 244 F. Supp. 3d at 541 (J.A. 272). That vague
language does not express a need for factfinding on any issue.
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31, ¶ 54. The Supreme Court has held that a “Governor’s signing or vetoing

of a bill” is an immune legislative act. Bogan, 523 U.S. at 55.

For the other individual defendants, the complaint alleges that they

“introduced, lobbied for passage of, and obtained passage of” the statute in

question. J.A. 30, ¶ 50. This Court has held directly that legislative

immunity covers activities like these. Kensington Volunteer Fire v.

Montgomery Cty., 684 F.3d 462, 471 (4th Cir. 2012) (holding that executive-

branch officials are immune from claims based on “proposing” legislation,

“submitting” legislation to a legislative body, and “advocating for” particular

legislation); accord Bogan, 523 U.S. at 47, 55 (holding that an executive

official was immune for proposing legislation).

Finally, Allen is also wrong that the defendants’ purported “wrongful

motivation” for their legislative acts displaces the immunity here. Allen Br.

13, 52-53. Because legislative immunity is an absolute protection, it does not

turn “on the motive or intent of the official.” Bogan, 523 U.S. at 55. After all,

an “absolute immunity would be of little value” if a plaintiff could pierce it by

offering “speculation as to motives.” Id. at 54 (quoting Tenney v. Brandhove,

341 U.S. 367, 377 (1951)). Because of that concern, legislative immunity

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applies even when government officials are accused of having an improper

motive for participating in the legislative process. Hollyday, 964 F.2d at 1443.

For these reasons, legislative immunity bars Allen’s copyright-

preemption claim against the individual defendants.

V. Qualified Immunity Bars the Copyright-Infringement Claim.

The district court also erred when it declined to apply qualified

immunity to the copyright-infringement claim against the individual

defendants. See 244 F. Supp. 3d at 541 (J.A. 272).

As the defendants’ opening brief discusses, this ruling was erroneous

for three reasons. First, the district court analyzed the “clearly established

law” element of qualified immunity at far too high a level of generality.

Second, a reasonable government official could have believed that the

Department’s limited display of Allen’s works was fair use. Third, a

reasonable official could have believed that Allen had agreed, in a binding

agreement with the Department, to allow the Department to display his

works. See Opening Br. 53-69.

Allen responds by arguing that this Court lacks appellate jurisdiction

to consider qualified immunity. Allen Br. 4-5. He also argues that

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factfinding is necessary before a court may rule on the qualified-immunity

defense. Id. at 53-59. As shown below, Allen is wrong on both points.18

A. This Court has jurisdiction to consider qualified immunity.

Allen challenges the Court’s appellate jurisdiction over the defendants’

qualified-immunity appeal, but his challenge fails.

A district-court order that rejects qualified immunity at the motion-to-

dismiss stage is immediately appealable under the collateral-order doctrine.

Iqbal, 556 U.S. at 672. Appellate courts have jurisdiction to review whether

“the facts pleaded” in a complaint “sufficiently allege[ ] a clearly established

violation of law.” Id. at 673.

Here, the individual defendants have demonstrated that the factual

allegations in Allen’s complaint do not show a violation of clearly established

18
Allen also suggests, without explanation, that the doctrine of qualified
immunity might not apply in copyright cases. See Allen Br. 53. That
suggestion contradicts binding Supreme Court precedent. The Supreme
Court has held that qualified immunity can apply whenever a government
official is accused of violating any federal “statutory . . . right.” Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011). Although qualified immunity rarely comes up
in copyright litigation, that is only because copyright lawsuits against state
officials are rare. When these rare cases have arisen, however, federal courts
have not hesitated to dismiss them under qualified immunity—usually
because a reasonable official could have believed that her display of
copyrighted materials was fair use. Opening Br. 56 & n.15 (citing cases).
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law about which a reasonable official would have known. Opening Br. 53-69.

This Court has jurisdiction to consider that argument. See, e.g., Iqbal, 556

U.S. at 672; Davis v. City of Greensboro, 770 F.3d 278, 282 (4th Cir. 2014)

(holding that “a ruling on the sufficiency of the pleadings [to pierce qualified

immunity] at the motion-to-dismiss stage” is “an appealable final decision”).

To try to defeat appellate jurisdiction, Allen relies on Johnson v. Jones,

515 U.S. 304 (1995). That reliance is misplaced.

In Johnson, the Supreme Court held that a summary-judgment order is

not immediately appealable if it denies qualified immunity because of a

dispute over the probative value of the plaintiff’s forecast of evidence. Id. at

311. This exception to the collateral-order doctrine is narrow. It applies only

when the defendant seeks “to appeal a district court’s determination that the

evidence is sufficient to permit a particular finding of fact after trial.” Id. at

314.

Here, the Johnson exception does not apply. At this stage of the case,

the question is not whether Allen could marshal evidence to support his

allegations. Instead, the defendants’ point is that Allen’s allegations—even if

true—do not describe a violation of clearly established law.

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That challenge to the legal sufficiency of Allen’s complaint satisfies the

collateral-order doctrine. See Iqbal, 556 U.S. at 672. This Court therefore has

jurisdiction to review the district court’s decision that denied qualified

immunity to the individual defendants.

B. Allen has offered no effective defense for the district


court’s misstatement of the test for qualified immunity.

When the district court denied qualified immunity here, it reasoned

that “the law of [copyright] infringement is clearly established.” 244 F. Supp.

3d at 541 (J.A. 272). As the opening brief discusses, that reasoning negated

Allen’s burden to show that the law that the defendants allegedly violated

was clearly established. To pierce qualified immunity, a plaintiff must show

that the relevant points of law were clearly established in the “specific

context of the case,” not at the high level of generality that the district court

used here. Opening Br. 54 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

In response, Allen repeats the district court’s error by addressing the

law of copyright infringement in abstract terms. See Allen Br. 53 (arguing

that “the standard for copyright infringement is well known”). That

generalized discussion falls short of what the law requires: an explanation of

how the law was clearly established in factual contexts like this one. See,

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e.g., Merchant v. Bauer, 677 F.3d 656, 665 (4th Cir. 2012) (“Although it was

clearly established that [the plaintiff] had a Fourth Amendment right not to

be arrested without probable cause, we assess the right in a more

particularized sense in the context of the specific facts of this case.”).

C. A reasonable official could have believed that the


Department’s display of Allen’s works was fair use.

The district court not only misstated the law on qualified immunity,

but misapplied those principles to Allen’s complaint. Opening Br. 56-65.

Allen’s counterarguments fail.

Allen’s complaint describes conduct that a reasonable official could

consider fair use. Allen alleges that the Department used a few seconds of

his footage across five educational videos and then posted the videos online

for free. J.A. 28, ¶ 44. He also alleges that the Department displayed a single

image in a museum newsletter and then made the newsletter available

online for free. J.A. 28, ¶ 44. A reasonable government official could believe

that this extremely limited use of Allen’s works—done solely for educational

purposes, not for profit—met the definition of fair use. Opening Br. 56-65.

Allen responds by arguing that the fair-use doctrine cannot apply here

because the Department’s use was commercial. Specifically, he claims that

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the Department’s use was “intended to benefit the spouse and friends” of the

individual defendants. Allen Br. 55.

In the abstract, Allen is right that using another person’s copyrights for

a commercial or profit-making purpose is presumptively unfair. However,

Allen overlooks the point that “[t]he contrary presumption” applies when the

use is for “a noncommercial, nonprofit activity.” Sony, 464 U.S. at 449; see

Allen Br. 55-58.

Here, Allen’s complaint offers no plausible basis for overcoming that

contrary presumption. Allen does not deny that the Department has an

educational and cultural mission. See N.C. Gen. Stat. § 121-4(13) (2015). He

does not deny that the materials he attacks here advanced that mission.

More importantly, he does not explain how including a few seconds of

footage in educational videos and posting the videos online for free could

have possibly generated profits.

To try to pierce the presumption of fair use, Allen argues that he seeks

to profit from his copyrighted works. Allen Br. 55. The Supreme Court has

made clear, however, that the presumption does not depend on whether the

copyright holder uses his works commercially. Instead, it depends on the

nature of the defendant’s allegedly infringing use.

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In Sony, for example, the Court applied the presumption of fair use to

a lawsuit on whether viewers could record television programs. 464 U.S. at

419. Although the programs had immense commercial value to their owners,

the presumption of fair use applied because the relevant use—“private home

use” by individuals—was noncommercial. Id. at 425, 449; see also Harper &

Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (applying

presumption of fair use because the user did not “stand[ ] to profit”).

Finally, Allen is wrong that qualified immunity depends on what the

individual defendants themselves purportedly knew “about the specifics of

permissible copyright use.” Allen Br. 58. A government official’s “subjective

belief about the nature of his conduct is ‘irrelevant’ for qualified immunity

purposes.” Henry v. Purnell, 652 F.3d 524, 535 (4th Cir. 2011) (en banc)

(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Instead, the

question is “what a hypothetical, reasonable officer would have thought in

th[e] circumstances” alleged. Id. Here, because a reasonable official could

have believed that displaying a few seconds of Allen’s footage in educational

videos was fair use, qualified immunity bars Allen’s infringement claim.

Because of the limited nature of the Department’s alleged use, Allen is

exaggerating when he claims that approving fair use here would “immunize

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all state employees everywhere against personal liability for copyright

infringement.” Allen Br. 54. A ruling for the defendants would stand for a

much narrower proposition: a reasonable official could believe that fair use

protects displaying snippets of a copyrighted work for a nonprofit,

educational purpose.

In any event, “qualified immunity affords protection to a government

officer who takes an action that is not clearly forbidden—even if the action is

later deemed wrongful.” Rogers v. Pendleton, 249 F.3d 279, 286 (4th Cir.

2001). Under this standard, even if this Court concluded that fair use did not

apply, qualified immunity would bar the copyright claim here because a

reasonable official could have believed that the Department’s use was lawful.

D. A reasonable official could also have believed that Allen


had agreed to allow the Department to display his works.

Qualified immunity also applies here because a reasonable government

official could have believed that Allen had authorized the Department to

display his copyrighted works. See Opening Br. 66-69.

In his brief, Allen does not deny any of the following points:

 He agreed in 2013 to allow the Department to retain a number of

still images and over eighty hours of video footage that depicted

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the Department’s excavation of the Queen Anne’s Revenge. J.A.

27-28, ¶ 40.

 Those works are public records under North Carolina law. See

N.C. Gen. Stat. § 132-1(a) (defining a public record as including

“photographs” and “films” that the State receives “in connection

with the transaction of public business”).

 The 2013 agreement between Allen and the Department

stipulated that North Carolina’s public-records law applied to

the Department’s handling of Allen’s footage. It also stipulated

that the Department may “mak[e] records available to the

public” under that law. J.A. 88, ¶ 17.

Under these circumstances, a reasonable government official could

have believed that Allen had authorized the Department to display his media

publicly.

Allen’s main response is to state that, as a general matter, possession of

a copyrighted work “does not confer the right to copy it.” Allen Br. 59. But

as the above points show, the agreement granted the Department far more

than mere possession of Allen’s works. The agreement treated the works as

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public records that “the people may obtain copies of” under North Carolina

law. N.C. Gen. Stat. § 132-1(b).

Qualified immunity therefore bars the infringement claim against the

individual defendants.

VI. Allen’s Cross-Appeal on His Takings Claim Lacks Merit.

For all the reasons described above, the district court erred when it

sustained Allen’s copyright claims. In contrast, the district court was right to

dismiss all of Allen’s other claims. See 244 F. Supp. 3d at 540 (J.A. 271). Allen

has cross-appealed the dismissal of one of these claims—his takings claim—

but the cross-appeal lacks merit. See Allen Br. 42-43.

By holding that Allen’s takings claim belongs (if anywhere) in North

Carolina state court, the district court simply followed controlling precedent

from this Court. As this Court has held, “the Eleventh Amendment bars

Fifth Amendment taking claims against States in federal court when

the State’s courts remain open to adjudicate such claims.” Hutto, 773 F.3d at

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552. This view is shared by “every other court of appeals” that has

considered the question. Id. at 553.19

Here, as the district court correctly observed, North Carolina courts

commonly decide takings claims filed against the State by private property

holders. See, e.g., Dep’t of Transp. v. Adams Outdoor Adver. of Charlotte, 804

S.E.2d 486, 492 (N.C. 2017). In North Carolina state courts, therefore,

sovereign immunity does not bar a property holder from bringing a takings

claim. Ferrell v. N.C. Dep’t of Transp., 435 S.E.2d 309, 312-13 (N.C. 1991).

Allen’s only response is to observe that this Court has not yet applied

the Eleventh Amendment to an alleged taking of copyrights. See Allen Br.

42. That historical accident does not matter, however, because this Court

has spoken in categorical terms: “the Takings Clause does not override the

Eleventh Amendment.” Hutto, 773 F.3d at 552. That rule applies to all

takings claims, regardless of the source of the property right involved.

19
See, e.g., Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 954 (9th
Cir. 2008); DLX, Inc. v. Kentucky, 381 F.3d 511, 526 (6th Cir. 2004); Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1279 (11th Cir. 1998); John G. & Marie Stella
Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 674 (5th Cir. 1994); Citadel Corp.
v. P.R. Highway Auth., 695 F.2d 3, 33 n.4 (1st Cir. 1982); Garrett v. Illinois, 612
F.2d 1038, 1040 (7th Cir. 1980).
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In sum, the district court was right to dismiss Allen’s takings claim,

because the Eleventh Amendment reserves the claim for the North Carolina

state courts.

CONCLUSION

The defendants respectfully request that this Court reverse the parts of

the district court’s order that denied the defendants’ motion to dismiss. The

defendants also request that the Court affirm the district court’s dismissal of

Allen’s takings claim.

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Respectfully submitted,

JOSHUA H. STEIN
Attorney General

Matthew W. Sawchak
Solicitor General

/s/ Ryan Y. Park


Ryan Y. Park
Deputy Solicitor General

Amar Majmundar
Senior Deputy Attorney General

Olga E. Vysotskaya de Brito


Special Deputy Attorney General

North Carolina Department of Justice


Post Office Box 629
Raleigh, North Carolina 27602
(919) 716-6400

December 4, 2017

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CERTIFICATE OF SERVICE

I certify that on this 4th day of December, 2017, I filed the foregoing

brief with the Clerk of Court using the CM/ECF system, which will

automatically serve electronic copies on all counsel of record.

/s/ Ryan Y. Park


Ryan Y. Park
Appeal: 17-1522 Doc: 57 Filed: 12/04/2017 Pg: 80 of 80

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitations of

Fed. R. App. P. 28.1(e)(2)(A)(i) because it contains 12,736 words, excluding

the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies

with the typeface and type-style requirements of Fed. R. App. P. 32(a)(5) &

(6) because it has been prepared in a proportionally spaced typeface: 14-

point Constantia font.

/s/ Ryan Y. Park


Ryan Y. Park