Richard Anderson Photography v. Brown

TERRENCE WILLIAM BOYLE, District Judge,

concurring in part and dissenting in part:

I agree with the majority that the Commonwealth of Virginia has not “constructively consented” and “impliedly waived” its immunity and therefore concur in section IIB of the opinion. I also agree with the majority that the plaintiff’s copyright claims against the defendant Brown are enforceable and therefore I concur in section III of the majority opinion.

The majority has concluded that Congress has not expressly abrogated, in clear and unequivocal terms, state immunity under the eleventh amendment for copyright actions brought by private individuals. Because I believe that Congress, through the enactment of the Copyright Act, 17 U.S.C. §§ 101-914 , has abrogated Radford University’s eleventh amendment immunity, I respectfully dissent from section IIA of the majority opinion.

The majority points out that eleventh amendment jurisprudence presently interprets that amendment to embody a general principle of sovereign immunity. The rule of Atascadero State Hospital v. Scanlon, 473 U.S. 234 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985), and Welch v. State Department of Highways, — U.S. -, 107 S.Ct. 2941 , 97 L.Ed.2d 389 (1987), holds that in order to displace this immunity Congress must do so in “unmistakably clear language.” A review of the evolution and language of the Copyright Act leads me to the conclusion that the Act is sufficiently clear and unmistakable to indicate congressional intent to subject state governments to suits of this nature.

I.

Preliminarily I note that the majority has declined to discuss the methods by which Congress may exercise its power to abrogate state immunity. The district court in this action concluded that Congress may only abrogate the states’ eleventh amendment immunity when acting pursuant to § 5 of the fourteenth amendment. Richard Anderson Photography v. Radford University, 633 F.Supp. 1154, 1158 (W.D.Va.1986). The Supreme Court has expressly declined to address this question. 1 Recent circuit authority concludes that Congress may abrogate when acting pursuant to any plenary power it has been granted by the Constitution. United States v. Union Gas, 832 F.2d 1343, 1351-53 (3rd Cir.1987); McVey Trucking v. Secretary of State, 812 F.2d 311, 316 (7th Cir.1987). This conclusion is consistent with the con *124 stitutional balance of power struck between the national government and the individual states.

Article I, § 8, cl. 8 of the Constitution provides: “The Congress shall have Power ...; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (emphasis added).

Article VI, cl. 2 of the Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The tenth amendment to the Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (emphasis added).

The plain language of the Constitution delegates to Congress the power to enact exclusive copyright laws. This is exactly what Congress has done. 2 This is a “power” as defined by article I, § 8. It is the kind of “power” which was “delegated” to Congress by the Constitution. Such laws are made supreme law of the land by article VI. It was one of the powers not reserved to the states but expressly delegated by the people and the states to the United States in article I and acknowledged in the tenth amendment.

The supremacy clause requires that the judges in every state be bound by this supreme federal law “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Certainly something in the Constitution and laws of every state at the time of ratification was that state’s claim of sovereign immunity. The states were absolutely sovereign and immune from suit when they were at the pinnacle of the political order prior to the Constitution. After the Constitution was ratified, the states shared sovereignty with the United States. The states became ser-vient to the supreme law of the land where power was delegated to the Federal government and exercised by Congress. This construction draws from the plain meaning of the words used in the Constitution.

The eleventh amendment does not arrive on the scene until some ten years after the ratification of the Constitution. The source of the amendment and its effect is well documented both in history and in law. 3

That amendment is remedial in origin, directed as a response to the Court’s decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 , 1 L.Ed. 440 (1793). The amendment has been read expansively by the Supreme Court to address circumstances broader than its initial remedial purpose.

A narrow reading of the eleventh amendment would imply that its sole purpose is to withdraw an item of diverse citizenship subject matter jurisdiction from the federal courts. The corollary to such a narrow reading is the conclusion that non-diverse claims which have an independent basis of subject matter jurisdiction in federal court would be allowed against the states. In fact, the Court has concluded that states may not be sued by diverse citizens on any ground, not just on the basis of their status in diversity. See Welch, 107 S.Ct. at 2945 . 4

*125 In Hans v. Louisiana, 134 U.S. 1 , 10 S.Ct. 504 , 33 L.Ed.2d 842 (1890), the Court for the first time held that implicit in the eleventh amendment prohibition against suits by foreign citizens was a recognition that domestic citizens were barred from suing their own states because of the inherent immunity of the state from such suit.

The Court determined that the eleventh amendment not only deprived the federal courts of subject matter jurisdiction in suits between states and foreign citizens as the amendment expressly states, but also that the principle of sovereign immunity was implied in the amendment against all suits by citizens against states. Taking the broadest possible reading of the language in Hans, however, it would be impossible to conclude that the eleventh amendment usurped the delicate balances of power embodied in the Constitution.

The words of the eleventh amendment do not touch upon the issue of sovereign immunity. The amendment limits the subject matter jurisdiction of the federal courts as it was originally constructed in article III and affirmed in Chisholm v. Georgia by removing from article III, § 2 a certain class of cases involving states and other citizens not of that state. The amendment operates on the “judicial power of the United States” and does not by its terms operate on the states. The amendment does not vest states with any new rights; it simply further diminishes the “judicial power” that can be exercised against states by the federal courts.

The federal courts are courts of limited subject matter jurisdiction and thus may not act in those circumstances where they lack subject matter jurisdiction. As such, the concept of sovereign immunity does not germinate from the actual language of the eleventh amendment.

The principle of sovereign immunity that arises from judicial interpretation of the eleventh amendment must by its nature be somewhat less powerful than the sovereign immunity the states originally gave up when they ratified the Constitution. Indeed, the Supreme Court has recognized this fact by explicitly allowing Congress to abrogate state sovereign immunity through § 5 of the fourteenth amendment. It would not be said, however, that the fourteenth amendment has “repealed” the eleventh amendment. Similarly, the eleventh amendment cannot be construed so as to “repeal” article I.

“Extending the eleventh amendment to prohibit congressional power to abrogate under Article I would ignore the states’ representation in Congress and their consent to diminished power implicit in their acceptance of the Constitution.” Union Gas, 832 F.2d at 1355 . Hence, what the Supreme Court has given the states through interpretations of the eleventh amendment is circumscribed by the states’ acceptance of the principle of federalism embodied in the Constitution. The sovereign immunity of the eleventh amendment forms a presumption that the states may not be sued. This presumption may be refuted by acts of Congress. In my view then, the Copyright Act, enacted by Congress pursuant to an article I power, may provide the vehicle with which to abrogate the states’ immunity.

II.

I will now analyze the Act itself with the caveat that I agree with the majority’s conclusion that the statute as a whole must be analyzed in order to guage congressional intent to abrogate or preserve state eleventh amendment immunity.

The majority relies upon both Atascade-ro and Welch to find the language in the Copyright Act insufficient to abrogate state immunity. In Atascadero, the Court held that Congress did not abrogate California’s eleventh amendment immunity when it passed the Rehabilitation Act of 1973 ( 29 U.S.C. § 794 ). Section 794a(a)(2) of the Act allows “any person aggrieved by *126 any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance....” The Court found this general authorization for suit was not the “unmistakably clear language” needed to abrogate. In Welch , the Court held that Texas’ immunity was not abrogated by the Jones Act. The Jones Act allows “any seaman who shall suffer personal injury in the course of his employment” to maintain an action ( 46 U.S.C. § 688 ). This general authorization was also insufficient to subject the states to suit.

Given this authority, I agree with the majority that the Copyright Act’s authorization of suit against “anyone” in § 501 is not in itself a sufficiently clear congressional statement to abrogate state immunity under the eleventh amendment. The use of the term “anyone,” however, is only a portion of the story.

Section 101 of the original Copyright Act of 1909 made liable “any person” who violated the substantive provisions of the Act. An important change was made to the Act in 1976. Section 501 was drafted to replace former § 101 and made “anyone” who violated the Act liable. This change is significant and there is no question that the change itself enlarged, rather than contracted or left alone, the class of possible defendants. The court in Johnson v. University of Virginia, 606 F.Supp. 321, 324 (D.Va.1985), was quick to point this out and concluded that the change was expansive enough to encompass the states. 5

The majority fails to mention the change in statutory language. The fact that Congress arrived at the term “anyone” after starting with “any person” indicates it was not satisfied with previous coverage under the Act. A perusal of other statutes indicates that a logical interpretation of the change was that it was designed to include states within the class of potential violators. There is no other conceivable class of potential defendants that could have been intended to be included by the change.

Even at this point in the analysis the language at bar is more demonstrative in its intent to include the states than that at issue in either Atascadero or Welch . The generalized language in Atascadero is not supported by any similar change in the wording of the statute. The operative language in Welch is even less conclusive in identifying the states as possible defendants because it refers to a class of plaintiffs. Here the “anyone” language of the Copyright Act refers to a class of defendants.

It is clear that Atascadero and Welch require unequivocal statutory language in order to abrogate eleventh amendment immunity. The specific language addressed in those cases, however, is far different than that of the Copyright Act. The change from “any person” to “anyone” is indicative of congressional intent to subject the states to suit. The change, standing alone, however, is not a sufficient statement of congressional intent to abrogate state immunity. At a minimum, the term “anyone” certainly does, on its face, include the states within a class of potential defendants. 6 It is the series of exemptions within the Act that present the necessary “unequivocal indication of congressional intent to subject unconsenting states to suits for money damages in federal court.”

III.

While § 501, in conjunction with § 504, makes anyone who violates an owner’s copyright protections liable for damages, the Copyright Act contains a variety of exemptions from liability. I accept the *127 proposition that when Congress specifically identified states in the exemptions, it intended the states to be subject to suit in all other cases. This interpretation is consistent with the use of the word “anyone” in § 501 where Congress made the field of possible defendants as wide as possible. Then, through a specific list of exemptions, Congress narrowed the field of defendants in order to effectuate the full purposes and policies of copyright law.

It would be a strained statutory construction to hold that Congress added exemptions to the Copyright Act specifically in favor of the states if the states were already immune under the eleventh amendment.

A. The Section 602 Exemption

Section 602 of the Act, in conjunction with § 106 and § 501, prohibits the importation of copies or phonorecords of copyrighted material that have been acquired outside the United States. The prohibition, however, does not apply to “importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State ” (emphasis added).

The majority writes that this language might support Anderson’s argument if it read importation “by” any state rather than “under the authority or for the use of ... any State.” The majority then concludes that the exemption “can most logically, certainly arguably, be read as exempting from liability only those private persons or public officials acting in their individual capacity who import copyright materials under governmental authority or for governmental use.” ante at 120 (emphasis added). This restrictive interpretation, however, produces an anamolous result; state governments are immune under the eleventh amendment, state officials are immune under § 602, local governments are not immune at all, and local officials are immune under § 602. This crazyquilt of liability and immunity cannot be what Congress intended.

A more logical and natural interpretation of § 602 is that it exempts federal, state and local governments and their officials acting in their official capacity. Officials acting in their official capacity are exempted by the language reading “under the authority ... of_” in § 602(a)(1). The governments, federal, state and local, are exempted by the language reading “for the use of.... ” This language is connected by the word “or” which means that each portion may stand alone. The majority’s argument would be more compelling if the connecting word had been “and” but this is not the case. The use of the word “or” indicates an exemption for two distinct “classes” of defendants.

To construe § 602 to provide protection for officials in their individual capacity is inconsistent with the purpose of § 602 which is to prevent importation of unauthorized and “piratical” materials. The legislative history is barren of support for the idea that only government officials in their individual capacity are entitled to the protection of the exemption. At a minimum, some inkling in the legislative history would be necessary to sustain the odd interpretation of § 602 the majority has offered. The legislative history of § 602, however, does not speak to the way in which the exemption in (a)(1) should be construed. Thus, the words in the section should be given their plain meaning. In my opinion it is improper to narrow the scope of § 602(a)(l)’s exemption in light of the statutory language and legislative history. By exempting the states in § 602, Congress evidenced a clear and unequivocal intent to subject the states to suit in non-exempted areas.

B. The “Governmental Bodies” Exemptions

The legislative history of § 602 does uncover a point that is relevant in a discussion of other exemptions. In paraphrasing the statutory language of exemption (a)(1), the House Report states that the subsection does not apply to “importation under the authority or for the use of a governmental body_” H.R.Rep. No. 1467, 94th Cong., 2d Sess. 167, reprinted in 1976 U.S. Code Cong. & Admin. News 5659, 5783, 5785-86 (emphasis added). This is a paraphrase of § 602 that exempts “the *128 Government of the United States or of any State or political subdivision of a State.... ” This language is relevant to the central theme of the majority’s disposal of the Act’s exemptions for “governmental bodies.” The majority states that the “phrase ‘governmental bodies’ in this context has the same ambiguity for the purpose at hand as do the provisions in §§ 107-108.” ante at p. 119. This conclusion cannot withstand scrutiny. A natural reading of the term “governmental bodies” would include a state government. This conclusion is buttressed by the legislative history of § 602 which uses the phrases “governmental bodies” and “Government of ... any State” interchangeably. 7

Section 110 of the Act lists a variety of exemptions to the exclusive rights of the copyright holder. Subsection (2) allows performance or display of a nondramatic literary or musical work if:

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and

(C) the transmission is made primarily for—

(i) reception in classrooms or similar places normally devoted to instruction, or

(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or

(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;

(emphasis added). The majority concludes that the reference to “governmental bodies” in § 110(2) “could be read as applicable only to local governments or to actions by government officials so that the states’ continued immunity would not render § 110(2) superfluous.” ante at 119. Again, there is no apparent reason to read the statute in such a restrictive manner. The phrase “governmental bodies” on its face encompasses federal, state and local governments. The majority looks in vain for a definition of the phrase that includes “states” within its grasp. The cart, however, is before the horse. Unless defined otherwise, a phrase should be given its plain meaning.

In subsection (iii) of § 110(2), Congress has demonstrated the ability to specifically identify “officers or employees of governmental bodies.” An interpretation of the term “governmental bodies” to mean only government officials is unwarranted given Congress’s skills.

Section 110(6) of the Act exempts a:

(6) performance of a nondramatic musical work by a governmental body or a nonprofit agricultural or horticultural fair or exhibition conducted by such body or organization; the exemption provided in this clause shall extend to any liability for copyright infringement that would otherwise be imposed on such body or organization, under doctrines of vicarious liability or related infringement, for a performance by a concessionaire, business establishment, or other person at such fair or exhibition, but shall not excuse any such person from liability for the performance;

(emphasis added). This exemption provision goes into great detail to explain that the governmental body itself is the only exempted party. There is no possible construction that would extend the exemption to persons responsible for the performance.

Section 110(6) has been drafted in a specific and detailed fashion. If Congress had intended that local governments were to be the only beneficiary of the exemption, it could easily have so stated. It seems apparent, however, that all fairs, including state fairs, were targets of this legislation.

The list of exemptions involving “governmental bodies” continues. Section 110(8) *129 exempts transmissions of material to blind or handicapped persons if the transmission is made through the facilities of a governmental body. Section 111(a)(4) permits secondary transmissions by governmental bodies if made for no commercial advantage. Sections 112(b), (c), (d) allow governmental bodies to make copies of limited numbers of phonorecords in certain noncommercial situations. Section 118(d)(3) allows governmental bodies to record certain transmissions and hold them for a period of seven days. 8

In short, to make all the foregoing exemption provisions applicable only to local governments is to render nugatory a great volume of work done by Congress. It is difficult to believe that the great variety of “governmental body” exemptions found in the Act were prompted by concerns to protect local governments from infringement actions. 9

IV.

The Atascadero/Welch rule requires that Congress express its intent to abrogate in clear and unequivocal terms. Further, the Supreme Court does not permit abrogation to occur on the basis of a general authorization for suit. I believe that the authorization here has been expressed in a more than adequately clear and specific fashion. The change in statutory language coupled with the extensive series of specific exemptions demonstrates congressional intent in this field.

The outcomes of Atascadero and Welch should not control the present action. The statutory language of the Act in conjunction with the legislative history indicate an unequivocal intent to abrogate the states’ immunity under the eleventh amendment. If Congress had the benefit of Atascadero and Welch in 1976 when it rewrote the Act, it may be that it would not have taken for granted what appears to be so obvious— that is that the states may be held accountable for their violations of copyright as secured under the Constitution. Nevertheless, the statute, taken as a whole, demonstrates the necessary specific and unmistakable language needed to abrogate eleventh amendment immunity.

I would allow Anderson to maintain his copyright action against the Commonwealth of Virginia and therefore I must respectfully dissent.

. Justice Powell, in Atascadero, ruled that Congress can abrogate when acting pursuant to § 5 of the fourteenth amendment. 105 S.Ct. at 3145 . The district court below construed this language to implicitly negate any other method of abrogation. This implication is unwarranted. Although the Court in Welch was not faced with this question because, like the majority here, it did not find a clear and unequivocal expression by Congress to subject the states to suit, the Court did state: “We assume, without deciding or intimating a view of the question, that the authority of Congress to subject uncon-senting States to suit in federal court is not confined to § 5 of the Fourteenth Amendment.” 107 S.Ct. at 2946 .

. As the majority explains, these exclusive copyright laws are also the exclusive province of the federal courts. Section 301 of the Act preempts all copyright action based upon the common law or statutes of a state. Furthermore, 28 U.S.C. § 1338 (a) provides for exclusive federal jurisdiction under the Act.

. See, e.g., J. Orth, The Judicial Power of the United States — The Eleventh Amendment in American History (1987); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan.L.Rev. 1033 (1983); Comment, Copyright Infringement and the Eleventh Amendment: A Doctrine of Unfair Use? 40 Vand. L.Rev. 225 (1987). See also Atascadero, 105 S.Ct. at 3146 n. 2; Welch, 107 S.Ct. at 2949 -57 & accompanying notes.

.This holding by the Supreme Court lays the groundwork for prospective conflicts in the enforcement of the law where abrogation of state sovereign immunity is found to exist, regardless of whether it is under section 5 of the four *125 teenth amendment or under the assumptions concerning abrogation set out in Welch . This conflict would arise from the argument that citizens of a state had enforceable rights against their own state but that suits by foreign citizens would continue to be barred by the subject matter jurisdiction bar of the eleventh amendment.

. The Johnson court laid the foundation for this conclusion by citing with approval the opinion in Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir.1979). The Mills court found that the “any person” language of the 1909 Act was sufficient to include the states in the class of potential defendants and that Congress, through the Copyright Act, had abrogated the states' eleventh amendment immunity.

. Judge Kiser’s district court opinion in this case found that "anyone" was a term that included the states. Although Kiser did not undertake an abrogation analysis because he found that article I did not give Congress the power to abrogate, his implied waiver analysis concluded that the states were included in the class of defendants. Anderson, 633 F.Supp. at 1159 .

. The legislative history of § 110 does not define the term "government body.” Nevertheless, it would be strange indeed if the meaning of the phrase varied from section to section within the Act.

. Anderson also offers the exemptions contained in §§ 107, 108, and 601. I find Anderson’s arguments based on these sections to be less compelling than those based on the aforementioned sections and therefore I will not prolong this dissent any more than is necessary. I do note that §§ 107-108, applying to fair use, libraries and archives does offer minimal support for Anderson's argument because the coverage therein does cover state activities.

The provisions of § 601, which expired on July 1, 1986, however, are not helpful to the exemption portion of Anderson’s argument. Section 601 minimizes copyright protection for works not manufactured in the United States or Canada. Section 601(b)(3) grants the "Government of any State" an exemption from subsection (a) and, accordingly, the state as a plaintiff is entitled to full protection. Section 601, then, does not identify a state as an exempted defendant.

. I note in passing that Congress is adept at recognizing state immunity under the eleventh amendment. Several environmental statutes provide for governmental instrumentality or agency liability “to the extent permitted by the eleventh amendment to the Constitution....” See, e.g., 33 U.S.C. § 1365 (a); 16 U.S.C. § 1540 (g)(1)(A); 49 U.S.C. § 1686 (a); 42 U.S.C. § 4911 (a)(1).