A little more than a month after being sued for copyright infringement, UCLA has responded with a motion to dismiss the action on the grounds the court lacks subject matter jurisdiction by virtue of the Eleventh Amendment’s grant of immunity to UCLA’s Board of Regents and chancellor and for failing to state a claim against any named individual who was personally responsible for the alleged infringement. UCLA’s attorneys also claim that neither AIME nor Ambrose video have standing to sue and that certain of their state law claims are preempted.
Eleventh Amendment jurisprudence has a long and complex history. Generally, under the 11th Amendment, and in the absence of a State’s consent or waiver or Congressional abrogation, a State may not be sued in a federal court. For purposes of the 11th Amendment, the term “State” includes not just the State in name, but also its agencies and, in some narrowly defined instances, its officials. Here, UCLA contends that the State of California has not consented to suit and Congress has not acted to abrogate immunity in actions under the Copyright Act. As such, the Board of Regents and Chancellor enjoy 11th Amendment immunity as State actors in their official capacities. The unfortunate situation of States and their legal entities escaping liability for copyright infringement has been debated for years, most notably in 2000 when the Register of Copyrights requested Congress to seriously consider the implications of extending immunity to States in actions involving intellectual property. (See also GAO Report on State Immunity in Infringement Actions.) Because higher education has been the target in recent legislation concerning protection of intellectual property, I am not convinced that abrogation of immunity would be the best solution to this situation. The TEACH Act, the DMCA, and the HEOA, for example, impose stringent limitations on educational institutions aimed at preventing infringement by their employees and students. Failure to comply with the requirements of these acts pose sufficient burdens upon universities without opening them up to litigation. For further discussion on immunity and academic institutions, read this short piece from Information Today.
UCLA’s attorneys contend that AIME lacks constitutional standing to file suit because it is not the owner of any of the copyrights alleged to have been infringed. Further, AIME has not satisfied the requirements of demonstrating it could bring a lawsuit on behalf of its members, including Ambrose Video. The crux of UCLA’s argument rests upon a failure of the complaint to allege sufficient facts to support standing. I do think, however, that a properly drafted complaint could support AIME’s claim it has standing to represent its members. If this was the singular ground upon which dismissal was sought, I would hope the court would grant the right to amend the complaint. However, the immunity claim is meritorious enough that an amendment may not save the suit.
Finally, the motion for dismissal contends that the claims of AIME and Ambrose Video are preempted because they are grounded in state contract law. In the complaint, AIME and Ambrose state nearly identical claims under both the Copyright Act and state contract law. In the event the federal Copyright Act claims are dismissed on immunity or other grounds, UCLA argues, the state law claims cannot go forward because they are preempted by the Copyright Act. The contract giving rise to these claims is the license agreement entered into between Ambrose Video and UCLA when UCLA purchased DVDs from Ambrose. Under the terms of the license agreement, UCLA was prohibited from duplicating and broadcasting the content on the DVDs. UCLA contends, quote novelly, that this prohibition addresses conduct that is also addressed in the Copyright Act and as such is preempted. As Duke University’s Kevin Smith aptly notes, this argument has the potential of changing the way universities, and more notably their libraries, do business with providers of licensed content. If contracts that seek to control conduct that is otherwise covered by fair use or other provisions of the Copyright Act are preempted, the negotiation and effect of license agreements will radically change, perhaps for the better for libraries and their patrons.