FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC v. ROY A. COOPER, III, et al.
No. 17-1522, 17-1602
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
July 10, 2018
PUBLISHED. Argued: March 20, 2018
FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC,
Plaintiffs - Appellees,
v.
ROY A. COOPER, III, as Governor of North Carolina; SUSI H. HAMILTON, Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; SUSAN WEAR KLUTTZ, former Secretary of the North Carolina Department of Natural and Cultural Resources, individually; D. REID WILSON, Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in his official capacity; KARIN COCHRAN, former Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually; KEVIN CHERRY, Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; G. NEEL LATTIMORE, Director of Communications of the North Carolina Department of Natural and Cultural Resources, in his official capacity; CATHERINE A. OLIVA, Director of Marketing of the North Carolina Department of Natural and Cultural Resources, in her official capacity; CARY COX, former Assistant Secretary, Marketing and Communications of the North Carolina Department of Natural and Cultural Resources, individually; STEPHEN R. CLAGGETT, a/k/a Steve Claggett, State Archaeologist, individually and in his official capacity; JOHN W. MORRIS, a/k/a Billy Ray Morris, Deputy State Archaeologist - Underwater and Director of the Underwater Archaeology Branch of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; NORTH CAROLINA DEPARTMENT OF NATURAL AND CULTURAL RESOURCES; STATE OF NORTH CAROLINA,
Defendants - Appellants,
and
FRIENDS OF QUEEN ANNE‘S REVENGE, A NON-PROFIT CORPORATION,
Defendant.
THE COPYRIGHT ALLIANCE; RALPH OMAN,
Amici Supporting Appellees.
No. 17-1602
FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC,
Plaintiffs - Cross-Appellants,
v.
ROY A. COOPER, III, as Governor of North Carolina; SUSI H. HAMILTON, Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; SUSAN WEAR KLUTTZ, former Secretary of the North Carolina Department of Natural and Cultural Resources, individually; D. REID WILSON, Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in his official capacity; KARIN COCHRAN, former Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually; KEVIN CHERRY, Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; G. NEEL LATTIMORE, Director of Communications of the North Carolina Department of Natural and Cultural Resources, in his official capacity; CATHERINE A. OLIVA, Director of Marketing of the North Carolina Department of Natural and Cultural Resources, in her official capacity; CARY COX, former Assistant Secretary, Marketing and Communications of the North Carolina Department of Natural and Cultural Resources, individually; STEPHEN R. CLAGGETT, a/k/a Steve Claggett, State Archaeologist, individually and in his official capacity; JOHN W. MORRIS, a/k/a Billy Ray Morris, Deputy State Archaeologist - Underwater and Director of the Underwater Archaeology Branch of the North Carolina Department of Natural and Cultural Resources, individually and in his official capacity; NORTH CAROLINA DEPARTMENT OF NATURAL AND CULTURAL RESOURCES; STATE OF NORTH CAROLINA,
Defendants - Cross-Appellees,
and
FRIENDS OF QUEEN ANNE‘S REVENGE, A NON-PROFIT CORPORATION,
Defendant.
Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:15-cv-00627-BO)
Argued: March 20, 2018 Decided: July 10, 2018
Before NIEMEYER and KING, Circuit Judges, and Leonie M. BRINKEMA, United States District Judge for the Eastern District of Virginia, sitting by designation.
Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Brinkema joined.
ARGUED: Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees. Susan Freya Olive, OLIVE & OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Andrew Michael Gass, LATHAM & WATKINS LLP, San Francisco, California, for Amicus Ralph Oman. ON BRIEF: Josh Stein, Attorney General, Matthew W. Sawchak, Solicitor General, Amar Majmundar, Senior Deputy Attorney General, Olga E. Vysotskaya de Brito, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants/Cross-Appellees. G. Jona Poe, Jr., POE LAW FIRM, PLLC, Durham, North Carolina; David L. McKenzie, OLIVE & OLIVE, P.A., Durham, North Carolina, for Appellees/Cross-Appellants. Kelly M. Klaus, MUNGER, TOLLES & OLSON LLP, San Francisco, California, for Amicus Copyright Alliance. Perry J. Viscounty, Allison S. Blanco, Costa Mesa, California, Jennifer L. Berry, San Diego, California, Patrick K. O‘Brien, LATHAM & WATKINS LLP, San Francisco, California, for Amicus Ralph Oman.
Frederick Allen, a videographer, and Nautilus Productions, LLC, Allen‘s video production company, commenced this action, which, at its core, alleges that North Carolina, its agencies, and its officials (collectively, “North Carolina“) violated Allen‘s copyrights by publishing video footage and a still photograph that Allen took of the 18th-century wreck of a pirate ship that sank off the North Carolina coast. Allen and Nautilus obtained the rights to create the footage and photograph through a permit issued by North Carolina to the ship‘s salvors, and Allen subsequently registered his work with the U.S. Copyright Office. Allen and Nautilus also seek to declare unconstitutional a 2015 state law —
North Carolina filed a motion to dismiss under
The district court rejected North Carolina‘s claims of immunity, and North Carolina filed this interlocutory appeal. Allen and Nautilus filed a cross-appeal. For the reasons that follow, we reverse and remand with instructions to dismiss with prejudice the claims against the state officials in their individual capacities and to dismiss without prejudice the remaining claims.
I
In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French merchant vessel and renamed her Queen Anne‘s Revenge. Teach armed the Revenge with 40 cannons and made her his flagship. But the following year, the Revenge ran aground about a mile off the coast of Beaufort, North Carolina, and Teach abandoned her. Under state law, the ship and its artifacts later became the property of North Carolina and subject to its “exclusive dominion and control.”
More than two-and-a-half centuries later, on November 21, 1996, Intersal, Inc., a private research and salvage firm operating under a permit issued by North Carolina, discovered the wreck of the Revenge, and on September 1, 1998, Intersal, along with Maritime Research Institute, Inc., an affiliated entity, entered into a 15-year salvage agreement with the North Carolina Department of Natural and Cultural Resources (“the Department“). Under the agreement, Intersal and Maritime Research acknowledged North Carolina‘s ownership of the shipwreck and the ship‘s artifacts, and North Carolina acknowledged Intersal‘s and Maritime Research‘s salvage rights, agreeing that Intersal
and Maritime Research could retain a designated portion of the financial proceeds arising from the sale of media relating to the Revenge and replicas of its artifacts.
As relevant to this case, the agreement provided that:
Except as provided in paragraph 20 and this paragraph, Intersal shall have the exclusive right to make and market all commercial narrative (written, film, CD Rom, and/or video) accounts of project related activities undertaken by the Parties.
The agreement, however, made an exception for the creation of a “non commercial educational video and/or film documentary” and provided that the parties would cooperate in making such an educational documentary. And Paragraph 20 provided:
The Department shall have the right to authorize access to, and publish accounts and other research documents relating to, the artifacts, site area, and project operations for non commercial educational or historical purposes. Nothing in this document shall infringe to any extent the public‘s right to access public records in accordance with
Chapters 121 and132 of the General Statutes of North Carolina.
The agreement also provided:
[Maritime Research], Intersal and the Department agree to make available for duplication by each other, or, when appropriate, to provide the Department with, relevant field maps, notes, drawings, photographic records and other such technical, scientific and historical documentation created or collected by [Maritime Research], Intersal or the Department pursuant to the study of the site and the recovery of materials therefrom. These materials shall become public records curated by the Department.
copyrights in these materials with the U.S. Copyright Office, each copyright covering a year‘s worth of footage.
In 2013, Allen and Nautilus took the position that the Department‘s publication of Allen‘s work on the Internet without his consent infringed Allen‘s copyrights, and this prompted a dispute leading ultimately to a settlement agreement dated October 15, 2013, to which the Department, Intersal, Nautilus, and Allen were parties. In that agreement, none of the parties admitted to any wrongdoing but agreed to the clarification of preexisting arrangements so that the salvage operation could continue.
The 2013 Settlement Agreement divided Allen and Nautilus‘s video and photographic documentation, treating some of the footage as “commercial documentaries” and some as “non-commercial media,” for purposes of clarifying the parties’ respective rights. With respect to “commercial documentaries,” the 2013 Settlement Agreement provided:
Intersal, through Nautilus, has documented approximately fifteen (15) years of underwater and other activities related to the QAR [Queen Anne‘s Revenge] project. For purposes of this Commercial Documentaries section, Intersal represents to [the Department] that Nautilus Productions shall remain Intersal‘s designee. Intersal shall have the exclusive right to produce a documentary film about the [Revenge] project for licensing and sale. Intersal may partner with [the Department] if it chooses to do so. . . . If [the Department] and Intersal do not partner to make a documentary, the Intersal documentary script shall be reviewed by [the Department] for historical accuracy prior to final release by Intersal or its agents. Intersal agrees to allow [the Department] to use its completed documentary, free of charge, in its museums and exhibits for educational purposes.
With respect to “non-commercial media,” the Agreement provided in relevant part:
All non-commercial digital media, regardless of producing entity, shall bear a time code stamp, and watermark (or bug) of Nautilus and/or [the
Department], as well as a link to [the Department], Intersal, and Nautilus websites, to be clearly and visibly displayed at the bottom of any web page on which the digital media is being displayed.
[The Department] agrees to display non-commercial digital media only on [the Department‘s] website.
As to Nautilus‘s archival footage, the Agreement provided that archival footage and photographs that did not “bear a time code stamp and a Nautilus Productions watermark (or bug)” would be returned to Nautilus. But it also provided that the Department could “retain, for research purposes, archival footage, still photographs, and other media that contain a time code stamp and watermark [or bug], and as to such media [the Department] [would] provide Nautilus with a current, accurate list.”
Finally, the 2013 Settlement Agreement addressed the video footage and still photographs as public records, providing:
Nothing in this Agreement shall prevent [the Department] from making records available to the public pursuant to North Carolina General Statutes
Chapters 121 and 132 , or any other applicable State or federal law or rule related to the inspection of public records.During the recovery phase of the [Revenge] project, [the Department] and Intersal agree to make available to each other records created or collected in relation to the [Revenge] project. The entity requesting copies bears the cost of reproduction. Within one (1) year after the completion of the recovery phase, Intersal shall allow [the Department] to accession duplicate or original records that were created or collected by Intersal during the project and that are related to the site, or the recovery or conservation of the [Revenge] materials. Such records shall include relevant field maps, notes, drawings, photographic records, and other technical, scientific and historical documentation created or collected by [the Department] or Intersal pursuant to the study of the site and the recovery of materials therefrom. These materials shall become public records curated by [the Department]. All digital media provided by Intersal under the terms of this paragraph shall include a time code stamp and watermarks (or bugs).
Following execution of the 2013 Settlement Agreement, as Allen and Nautilus alleged in their complaint, the Department “resumed infringing [Allen‘s] copyrights” by “publish[ing] . . . and/or display[ing]” various “works” on the Internet. The complaint identified six “infringing works” along with their Internet addresses. Five of those works were videos about the Revenge shipwreck that were posted on the Department‘s YouTube channel, and the remaining “infringing work” was a newsletter about North Carolina‘s maritime museums, which contained an article about the Revenge with one of Allen‘s still photographs. Accordingly, Allen and Nautilus sent North Carolina a “Takedown Notice,” and North Carolina maintained that it complied before the hearing on its motion to dismiss filed in the district court. It provided the district court with documentary evidence confirming that fact, and at oral argument on this appeal, counsel for Allen and Nautilus also confirmed that the six alleged infringements had ceased.
Allen and Nautilus commenced this action in December 2015, naming as defendants the State of North Carolina, the Department, the Governor, and six officials in the Department, among others. Except for the Governor, who was sued only in his official capacity, each of the individual defendants was sued in both his or her official and individual capacities. The complaint, as amended, contained five counts. In Count I, Allen and Nautilus alleged that in 2015, the defendants enacted
under the
Following a hearing, the district court, by order dated March 23, 2017, denied North Carolina‘s motion to dismiss as to Counts I and II, concluding that its
From the district court‘s interlocutory order, North Carolina filed this appeal, challenging the district court‘s denial of immunity in all forms. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (recognizing the right to interlocutory appeal of an order denying sovereign immunity); Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (same as to qualified immunity); England v. Rockefeller, 739 F.2d 140, 142 (4th Cir. 1984), overruled on other grounds by Young v. Lynch, 846 F.2d 960 (4th Cir. 1988) (same as to legislative immunity). Allen and Nautilus cross-appealed, challenging several of the district court‘s specific conclusions regarding sovereign immunity.
II
Invoking the
of relief sought by the plaintiffs, see Pennhurst, 465 U.S. at 101–02, 114 n.25; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996).
Allen and Nautilus disagree, arguing that North Carolina waived sovereign immunity when it signed the 2013 Settlement Agreement; that the State‘s sovereign immunity was abrogated by the federal Copyright Remedy Clarification Act; and that, in any event, Ex parte Young provides them with an exception for the injunctive relief they request as to ongoing violations of federal law. We address these arguments in order.
The 2013 Settlement Agreement, on which Allen and Nautilus rely to argue that North Carolina waived its sovereign immunity, provides in relevant part:
In the event [North Carolina], Intersal, or [Allen and] Nautilus breaches this Agreement, [North Carolina], Intersal, or [Allen and] Nautilus may avail themselves of all remedies provided by law or equity.
Allen and Nautilus maintain that by agreeing to the availability of all remedies, North Carolina agreed that the remedies being sought in this action may be obtained from it, thereby effecting a waiver of sovereign immunity from suit in federal court.
We cannot, however, read this provision as a waiver of North Carolina‘s
those remedies must also apply. And one of those limitations is that a State, its agencies, and its officials acting in their official capacities cannot be sued in federal court without their consent. We readily conclude that the provision falls far short of the clear statement that is required to effect a waiver of
B
Allen and Nautilus also contend that Congress validly abrogated North Carolina‘s
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person . . . for a violation of any of the exclusive rights of a copyright owner provided by [federal copyright law].
‘anyone’ includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity“).
It is well established that any abrogation of a State‘s
Allen and Nautilus contend first that Congress validly enacted the Copyright Remedy Clarification Act because it properly invoked Article I‘s Patent and Copyright Clause, which authorizes Congress to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Allen and Nautilus argue, however, that those cases were impliedly overruled by the Supreme Court‘s more recent decision in Central Virginia Community College v. Katz, 546 U.S. 356 (2006), which relied on Article I‘s Bankruptcy Clause to hold that a proceeding initiated by a bankruptcy trustee to set aside preferential transfers by a debtor to a state agency was not barred by sovereign immunity. The Katz holding, however, was made in a completely distinguishable context that was unique to the Bankruptcy Clause, and the Court limited its holding to that Clause. See id. at 362–77; see also id. at 362–63 (“The history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation . . . enacted under its auspices immediately following ratification . . . demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena“). Indeed, the Court made clear that its holding in Katz was not intended to overrule Seminole Tribe and its progeny, stating that it was not disturbing the broader jurisprudence regarding Congress‘s power to abrogate
Allen and Nautilus contend that, in any event, Congress validly enacted the Copyright Remedy Clarification Act under the authority granted to it in
In construing the scope of § 5 power, the Supreme Court has been careful to strike a considered balance between upholding the dignity of States as sovereign entities, on the one hand, and safeguarding individual rights protected by the
the
In this case, we conclude that in enacting the Copyright Remedy Clarification Act, Congress satisfied neither requirement.
First, it is readily apparent that in enacting the Copyright Remedy Clarification Act, Congress relied on the Copyright Clause in Article I of the Constitution, rather than
2011) (“The legislative history of the [Copyright Remedy Clarification Act] makes clear that Congress intended to abrogate state sovereign immunity under its Article I powers“). Neither the text of the statute nor its legislative history indicates any invocation of authority conferred by
This was made clear in Florida Prepaid, where the Supreme Court addressed the constitutionality of the Patent Remedy Act, which abrogated the States’ immunity from suit in federal court for patent infringement. After noting that the legislative history indicated that Congress relied on the
There is no suggestion in the language of the statute itself, or in the House or Senate Reports of the bill which became the statute, that Congress had in mind the Just Compensation Clause. . . . Since Congress was so explicit about invoking its authority under Article I and its authority to prevent a State from depriving a person of property without due process of law under the Fourteenth Amendment, we think this omission precludes consideration of the Just Compensation Clause as a basis for the Patent Remedy Act.
Here, the legislative history of the Copyright Remedy Clarification Act shows that Congress relied on its Article I power over copyrights and not on
Allen argues that the Supreme Court‘s decisions in EEOC v. Wyoming, 460 U.S. 226 (1983), and Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), undermine any need to invoke expressly the
Similarly, Kimel provides Allen and Nautilus with little support. The Kimel Court concluded that the Age Discrimination in Employment Act‘s abrogation of sovereign immunity was invalid because it was not a congruent and proportional response to unconstitutional age discrimination by the States. See Kimel, 528 U.S. at 91–92. They argue that, because the Court reached that conclusion despite the absence of any congressional invocation of the
See Beck v. McDonald, 848 F.3d 262, 273 (4th Cir. 2017) (explaining that “[t]his court is ‘bound by [the] holdings’ of the Supreme Court, not its ‘unwritten
Not only did Congress not invoke its authority under § 5, it also did not, as required, limit the scope of the Copyright Remedy Clarification Act to enforcement of rights protected by the
Our conclusion is required by Florida Prepaid, where the circumstances were analogous to those before us. The Supreme Court there concluded that the Patent Remedy Act did not appropriately enforce the
Citing at length to the legislative record of the Patent Remedy Act, the Florida Prepaid Court then determined that Congress was not faced with sufficient evidence of unconstitutional patent infringement to justify abrogation. It observed that there were fewer than 10 patent infringement suits against States in the century preceding the enactment of the Patent Remedy Act; that most state infringement was apparently accidental; and that while state remedies for governmental infringement were disuniform and rather tenuous, the evidence before Congress did not prove such remedies to be constitutionally inadequate. See Florida Prepaid, 527 U.S. at 640-45. In the Court‘s view, this evidence “suggest[ed] that the Patent Remedy Act does not respond to a history of ‘widespread and persisting deprivation of constitutional rights’ of the sort Congress has faced in enacting proper prophylactic
The Court then compared that evidence to the Patent Remedy Act‘s sweeping abrogation provisions, which made the States liable for patent infringement to the same extent as private parties, and concluded that the provisions were “‘so out of proportion to a supposed remedial or preventive object that [they] [could not] be understood as responsive to, or designed to prevent, unconstitutional behavior.‘” Florida Prepaid, 527 U.S. at 646 (first alteration in original) (quoting City of Boerne, 521 U.S. at 532). In particular, the Court observed
In this case, a similar legislative record and an equally broad enactment likewise leads to the conclusion that the Copyright Remedy Clarification Act‘s abrogation of sovereign immunity cannot be sustained under
While we may presume that a copyright, like a patent, is a “species of property” that could be deprived without due process in violation of the Fourteenth Amendment, not every infringement violates the Constitution, as the Florida Prepaid Court explained. To be sure, the legislative record of the Copyright Remedy Clarification Act did include some evidence of copyright infringement by States that presumably violated the Fourteenth Amendment‘s Due Process Clause. The record of such infringement, however, was materially similar to that in Florida Prepaid.
As Allen and Nautilus note, most of the evidence was compiled in a 1988 report prepared at Congress‘s request by Ralph Oman, who was then the United States Register of Copyrights. See U.S. Copyright Office, Copyright Liability of States and the Eleventh Amendment: A Report of the Register of Copyrights (June 1988) (“Oman Report“). In preparing the report, the Copyright Office solicited public comments regarding the issue of state immunity from copyright claims and received several dozen responses from various industry groups, among others, expressing grave concerns about the prospect of such immunity. See Oman Report at 5-6. But, the Oman Report reveals that only five of the commenters “document[ed] actual problems . . . in attempting to enforce their [copyright] claims against state government infringers.” Id. at 7. And the commenters’ responses described at most seven incidents in which States invoked sovereign immunity to avoid liability for copyright infringement. See id. at 7-9. Only two of those incidents recounted in the Register‘s Report — where States invoked sovereign immunity and continued to display copyrighted films to prison inmates for free even after the copyright holders notified them of the infringement — were described with sufficient detail to show clearly the requisite willfulness of state officials to amount to a due process violation. See id. at 7-8. Besides these incidents in the Oman Report, Congress learned of just a few other comparable incidents of unremedied State infringement from hearing testimony. See, e.g., Copyright Remedy Clarification Act and Copyright Office Report on Copyright Liability of States: Hearings on H.R. 1131 Before the Subcomm. on Courts, Intellectual Prop. & the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 139-40 (1990) (hereinafter, “House Hearing“) (testimony of Bert van der Berg, President, BV Engineering Professional Software); The Copyright Clarification Act: Hearing on S. 497 Before the Subcomm. on Patents, Copyrights & Trademarks of the S. Comm. on the Judiciary, 101st Cong. 151-152 (1990) (hereinafter, “Senate Hearing“) (statement of William Taylor). In total, even assuming that all of the incidents of unremedied infringement
This evidence plainly falls short of establishing the “widespread and persisting deprivation of constitutional rights” that is required to warrant prophylactic legislation under
Acting against this backdrop of limited evidence, Congress enacted the Copyright Remedy Clarification Act to make States broadly, immediately, and indefinitely accountable for copyright infringement to the same extent as private parties, imposing sweeping liability for all violations of federal copyright law, whether the violation implicates the Fourteenth Amendment or not. See
Accordingly, we conclude that the Copyright Remedy Clarification Act‘s wholesale abrogation of sovereign immunity for claims of copyright infringement is grossly disproportionate to the relevant injury under the Fourteenth Amendment, and therefore the abrogation cannot be sustained as an enactment that “appropriate[ly]” “enforce[s]” that Amendment.
In concluding otherwise, the district court sought to distinguish the record in Florida Prepaid by relying primarily on the “many examples of copyright infringements by States” in the Copyright Remedy Clarification Act‘s legislative history. In so relying, however, the court failed to consider whether any of those examples involved intentional and unremedied infringement, as Florida Prepaid clearly instructs. Also, as an alternative basis for holding that the Copyright Remedy Clarification Act had validly abrogated North Carolina‘s immunity, the district court relied on “the amount of suits filed against allegedly infringing states in recent years.” That reliance, however, did not comport with the Supreme Court‘s determination that Congress must identify a pattern of unconstitutional conduct before it abrogates Eleventh Amendment immunity. See Florida Prepaid, 527 U.S. at 639-40; see also Coleman v. Court of Appeals of Md., 566 U.S. 30, 42 (plurality opinion)
In concluding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity, we join the numerous other courts to have considered this issue since Florida Prepaid, all of which have held the Act invalid. See, e.g., Chavez v. Arte Publico Press, 204 F.3d 601, 607-08 (5th Cir. 2000); Issaenko v. Univ. of Minn., 57 F. Supp. 3d 985, 1007-08 (D. Minn. 2014) (collecting a dozen cases).
C
Finally, Allen and Nautilus contend that, at the very least, their claims against the state officials for injunctive and declaratory relief may proceed under the exception to Eleventh Amendment immunity recognized in Ex parte Young, 209 U.S. 123 (1908). The parties argued the issue before the district court, but the court, in light of its ruling on the Copyright Remedy Clarification Act, did not address it. Because we reverse the district court on abrogation, we address the Ex parte Young exception and conclude that the exception does not apply in this case.
Under Ex parte Young, private citizens may sue state officials in their official capacities in federal court to obtain prospective relief from ongoing violations of federal law. See Franks v. Ross, 313 F.3d 184, 197 (4th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002). This exception to Eleventh Amendment immunity “is designed to preserve the constitutional structure established by the Supremacy Clause” and rests on the notion, often referred to as “a fiction,” that a state officer who acts unconstitutionally is “stripped of his official or representative character and [thus] subjected in his person to the consequences of his individual conduct.” Antrican, 290 F.3d at 184 (quotation marks and citations omitted). To invoke the exception, the plaintiff must identify and seek prospective equitable relief from an ongoing violation of federal law. Id. at 186.
Allen and Nautilus maintain that they have alleged two ongoing violations from which they seek prospective relief: (1) North Carolina‘s continuing infringement of Allen‘s copyrights and (2) its continuing enforcement of an unconstitutional statute, namely,
As to the alleged ongoing copyright infringement, Allen and Nautilus identified in their complaint six specific “infringing works” that are “now publicly viewable” at six locations on the Internet, specifying the Internet address for each. North Carolina, however, maintains that shortly before the November 2016 hearing on its motion to dismiss, it removed those allegedly infringing materials from the Internet and provided exhibits to the district court to confirm that it had done so. While Allen and Nautilus acknowledged at oral argument that the six alleged violations had ceased, they argue that the complaint nonetheless alleged generally instances of ongoing Internet infringement beside those six violations, referring to a paragraph that alleged, in a conclusory fashion, that displays of copyrighted materials were continuing “at least at th[ose] locations.” But such a general and threadbare catchall, suggesting the possibility of other infringing displays, does not plausibly allege the existence of an ongoing violation of federal law. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)). In the same vein, Allen and Nautilus argue that because they alleged a history of infringements both before and after the 2013 Settlement Agreement, there is “no reasonable prospect that infringements will cease unless they are enjoined.” This argument, however, which relies on the asserted possibility that North Carolina will resume infringing Allen‘s copyrights, conflates the Ex parte Young exception with the doctrine of mootness. Even assuming that North Carolina has failed to provide reasonable assurances that it will avoid infringing Allen‘s copyrights in the future, as would foreclose the voluntary-cessation exception to mootness, it remains Allen‘s burden in the context of sovereign immunity to establish an ongoing violation of federal law to qualify for relief under Ex parte Young. See Watkins v. Blinzinger, 789 F.2d 474, 483-84 (7th Cir. 1986) (citing Green v. Mansour, 474 U.S. 64 (1985)); see also DeBauche v. Trani, 191 F.3d 499, 505 (4th Cir. 1999) (noting that Ex parte Young requires “an ongoing violation of federal law” and thus “does not apply when the alleged violation . . . occurred entirely in the past“). Because the only ongoing infringement that Allen and Nautilus plausibly alleged has concededly ended, they cannot employ the Ex parte Young exception to address their fear of future infringements.
Allen and Nautilus also identify as an ongoing violation North Carolina‘s purported continuing “enforcement” of
In this case, Allen and Nautilus sued the State, the Governor, the Department, and several Department officials, alleging at most that several of the officials supported enactment of
Accordingly, we conclude that Ex parte Young does not provide Allen and Nautilus with an exception to the Eleventh Amendment immunity claimed by North Carolina.
The North Carolina officials who were sued in their individual capacity for monetary damages contend that the district court erred in denying them qualified immunity and legislative immunity from suit. In doing so, the district court explained that these defendants were not protected by qualified immunity because “the law of [copyright] infringement is clearly established.” The court also denied them legislative immunity because it was “premature” to resolve that issue. As we explain, however, we also reverse on these issues.
Qualified immunity “shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The inquiry as to whether the law is “clearly established” is a demanding one:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.
* * *
The Supreme Court has repeatedly told courts . . . not to define clearly established law at a high level of generality. Thus, we consider whether a right is clearly established in light of the specific context of the case, not as a broad general proposition.
Adams v. Ferguson, 884 F.3d 219, 226-27 (4th Cir. 2018) (quotation marks and citations omitted).
In this case, Allen and Nautilus obtained their rights to take videos and photographs of the Revenge shipwreck from Intersal, who in turn obtained the rights from the Department. And any rights that Allen and Nautilus have to those videos and photographs are circumscribed by the provisions of the 2013 Settlement Agreement with the Department. In that Agreement, Intersal asserted — and the Department, Allen, and Nautilus agreed — that Intersal had documented “fifteen (15) years of underwater and other activities related to the [Queen Anne‘s Revenge] project” and that it had the right to produce and retain an interest in a commercial documentary film about those activities. The Agreement provided that the Department could “use [the] completed documentary, free of charge, in museums and exhibits for educational purposes.” And the Agreement provided, with respect to non-commercial digital media, that such media should bear “a time code stamp and watermark” of “Nautilus and/or [the Department]” and that the Department would display them only on the Department‘s website. The Agreement also provided that the Department could retain the archival footage with a time stamp and watermark “for research purposes,” although it would return to Nautilus any footage and photographs that did not bear a time code stamp and watermark. Moreover, it provided that “[d]uring the recovery phase of the [Revenge] project, [the Department] and Intersal [would] make available to each other records created or collected in relation to the [Revenge] project,” (emphasis added), defining “records” to include “field maps, notes, drawings, photographic records, and other technical, scientific and historical documentation created or collected by [the Department] or Intersal pursuant to the study of the site and the recovery of materials therefrom.” These materials were designated “public
Notably, the 2013 Settlement Agreement stated that “[n]othing in [the] Agreement shall prevent [the Department] from making records available to the public pursuant to North Carolina General Statutes Chapters 121 and 132, or any other applicable State or federal law or rule related to the inspection of public records.” At that time — i.e., in 2013, before
Based on these provisions of the 2013 Settlement Agreement and the then applicable public records law, it is far from clear whether the Department was prohibited from displaying Allen‘s copyrighted materials in the manner alleged in the complaint. This is especially so in view of the Department‘s role in the salvage project to preserve for the public the site and artifacts and to document their salvage in furtherance of research and the education of the public.
Of course, we need not resolve whether North Carolina‘s display of the video footage and the still photograph violated the Copyright Act to resolve the issue of qualified immunity. See Pearson, 555 U.S. at 231. What we do conclude is that reasonable officials in the position of the North Carolina officials would not have understood beyond debate that their publication of the material violated Allen‘s rights under the Copyright Act. The issue is indeed debatable. Accordingly, we conclude that Allen and Nautilus‘s copyright claims against the North Carolina officials in their individual capacities are precluded by qualified immunity.
We also conclude that legislative immunity shields the North Carolina officials in their individual capacities for their alleged involvement in the enactment of
The district court did not expressly resolve whether the individual officers were entitled to legislative immunity, concluding instead that such a ruling would be “premature.” But its deferral in ruling amounted to a denial of the immunity because the immunity protects officials “not only from the consequences of litigation‘s results, but also from the burden of defending themselves” in court. Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732 (1980) (emphasis added); see also Nat‘l Ass‘n of Soc. Workers v. Harwood, 69 F.3d 622, 639 (1st Cir. 1995) (noting that legislative immunity is “not simply a defense to liability” but rather “an immunity from suit“). Thus, the very purpose of the immunity is thwarted when an official must expend “time and energy . . . to defend against a lawsuit” arising from his legislative acts. Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998). Accordingly, the North Carolina officials can appropriately appeal the district court‘s deferral in ruling on legislative immunity.
Legislative immunity entitles public officials to absolute immunity for their performance of legislative functions. See Kensington Vol. Fire Dep‘t, Inc. v. Montgomery Cty., 684 F.3d 462, 470 (4th Cir. 2012). And it attaches whenever state officials — including those outside the legislative branch — engage in any conduct within the “sphere of legitimate legislative activity.” Id. (quoting Bogan, 523 U.S. at 54). Determining whether
In this case, the North Carolina officials were sued in their individual capacities for “conspir[ing] to convert [Allen‘s] copyrighted works into public documents” through the enactment of
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For the foregoing reasons, we reverse each of the district court‘s rulings on immunity and remand with instructions that the district court dismiss without prejudice Allen and Nautilus‘s claims against North Carolina, the Department, and the public officials acting in their official capacities and to dismiss with prejudice the remaining claims against the officials in their individual capacities.
REVERSED AND REMANDED WITH INSTRUCTIONS