Paul D. Borman, United States District Judge *730Plaintiff TC Reiner first brought this copyright suit, alleging both infringement and wrongful removal of copyright information, against Saginaw Valley State University ("SVSU "), the Saginaw Valley State University Board of Control ("SVSU Board "), a former SVSU student, and an initially unnamed SVSU professor. The first three of those defendants have since been dismissed, and the professor has since been identified as Defendant Thomas Canale ("Defendant ").
Now before the Court is Defendant Canale's Motion for Judgment on the Pleadings. Defendant advances two potential grounds for dismissal of this action: (1) untimeliness, because he was not named as a defendant until after the limitations period had expired, and the amended pleading adding him as a party does not relate back to the date of the earlier complaint; and (2) immunity, on the assertion that Defendant has qualified immunity in his individual capacity, and Eleventh Amendment immunity in his official capacity. Both arguments have merit, and the Court will therefore grant Defendant's Motion for Judgment on the Pleadings.
I. BACKGROUND
A. Factual Allegations
Plaintiff is a professional fashion and fine-art photographer. (ECF No. 32, 2d Am. Compl. ¶ 3.) He is the creator of the work at issue in this lawsuit (the "Work "): a photograph of a seated woman entitled Nikki. (2d Am. Compl. ¶ 11; Ex. 1, Photograph entitled "Nikki ".) He also owns a copyright in the Work, which was registered in 2004. (2d Am. Compl. ¶ 12-13; Ex. 2, Copyright Catalog Entry.)
Defendant is a Professor of Art at SVSU, and held that position during all times relevant to this lawsuit. (2d Am. Compl. ¶ 4; ECF No. 39, Answer ¶ 4.)
On or around April 28, 2014, Plaintiff learned that the Work had been included in materials distributed by SVSU to its students. (Am. Compl. ¶ 15.) Plaintiff alleges that Defendant copied and distributed the Work to his students, and alleges on information and belief that at least one student used the Work in designing an advertisement for a domestic violence shelter as part of a class assignment.
Defendant did not have or obtain a license or permission to use the Work. (2d Am. Compl. ¶ 20.) At no point were students advised to seek permission from Plaintiff to use the Work, and the Work as provided to students did not contain copyright information. (2d Am. Compl. ¶¶ 19, 26.) While SVSU maintains policies regarding the use of copyrighted material, Plaintiff alleges, those policies do not require strict adherence, nor do they require instructors to educate their students on either the copyright policies themselves or *731on applicable copyright laws and regulations. (2d Am. Compl. ¶ 21; Ex. 4, Copyright Policy.)
In a letter dated August 18, 2015, Plaintiff (through an attorney) notified SVSU that its use of the Work violated federal copyright law, and demanded that SVSU cease and desist from further use of the Work. SVSU denied violating any copyright law. (Am. Compl. ¶¶ 22-23.)
Plaintiff alleges that "[b]y failing to obtain a license for the Work or other works
B. Relevant Procedural History
Plaintiff first filed suit on May 16, 2016 against SVSU and the SVSU Board of Control ("SVSU Board ") only. (ECF No. 1, Compl.) The original Complaint asserted two claims for copyright infringement under the Copyright Act,
The following November, Magistrate Judge Patricia T. Morris granted Plaintiff leave to amend his complaint, and Plaintiff added two defendants to the action: the student whom Plaintiff alleges used the Work in a class assignment, and the professor who taught the class. (ECF No. 16, Am. Compl.) In the Amended Complaint, the professor-now identified as Defendant Canale-was referred to as "Jane Doe." (Am. Compl. at 2, Pg ID 193.)
A few days after Plaintiff filed his Amended Complaint, SVSU and SVSU Board moved to dismiss the Amended Complaint (to the extent that it asserted claims against SVSU and the SVSU Board) on Eleventh Amendment grounds. The parties fully briefed that motion.
On July 7, 2017, Plaintiff filed his Second Amended Complaint, which is pled against Defendant Canale only, and which is now the operative complaint in this case. (ECF No. 32, 2d Am. Compl.) The Second Amended Complaint asserts two claims: one claim of copyright infringement under the Copyright Act,
On September 15, 2017, Defendant filed the instant Motion for Judgment on the Pleadings. (ECF No. 40, Pl.'s Mot.) Plaintiff did not file a timely response, and sought the Court's leave on October 27 to *732file a late response. (ECF No. 43.) The Court granted Plaintiff leave to file a late response (ECF No. 47), which Plaintiff did on November 7 (ECF No. 48, Pl.'s Resp.). Defendant filed a Reply the following day. (ECF No. 49, Def.'s Reply.)
The Court conducted a hearing on Defendant's Motion for Judgment on the Pleadings on Wednesday, November 22, 2017, and now issues the following ruling.
II. STANDARD OF REVIEW
"Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6)." Sensations, Inc. v. City of Grand Rapids ,
Thus, Rule 12(c), like Rule 12(b)(6), allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of Memphis ,
To state a claim, a complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he complaint 'does not need detailed factual allegations' but should identify 'more than labels and conclusions.' " Casias v. Wal-Mart Stores, Inc. ,
In other words, a plaintiff must provide more than "formulaic recitation of the elements of a cause of action" and his or her "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly ,
"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d) ; see also Rondigo, L.L.C. v. Twp. of Richmond ,
*733III. DISCUSSION
Defendant advances two lines of argument in his Motion for Judgment on the Pleadings. First, he argues that Plaintiff's claims are time-barred, since amended pleadings naming previously unnamed defendants (commonly known as "Doe defendants") do not relate back to the date of the original pleading under Federal Rule of Civil Procedure 15(c), and Defendant Canale was not named as a party to this action until after the applicable three-year limitations period expired. Second, Defendant argues in the alternative that he is entitled to qualified immunity insofar as he is being sued in his individual capacity, and Eleventh Amendment immunity insofar as he is being sued as a state employee.
As discussed in detail below, Plaintiff's claims are indeed time-barred under the governing statute of limitations. Even if they were not, Defendant would be entitled to both forms of immunity that he invokes. Accordingly, the Court will grant Defendant's Motion for Judgment on the Pleadings.
A. Plaintiff's claims are time-barred.
As a threshold matter, Defendant argues that this action is barred by the three-year limitations period that applies to both of Plaintiff's claims.
Both claims arise under Title 17 of the United States Code: his copyright infringement claim is asserted under
It was in the Second Amended Complaint that Plaintiff named Canale as the defendant who had been previously identified as "Jane Doe" in the initial pleadings. The Second Amended Complaint was filed on July 7, 2017-more than three years after Plaintiff alleges he became aware of the alleged copyright violations on April 28, 2014. (See 2d Am. Compl. ¶ 15.) There is no apparent dispute that for this reason, the Second Amended Complaint must relate back to the date of an earlier pleading that was filed within
Amendment of pleadings in federal civil actions is governed by Federal Rule of Civil Procedure 15. Rule 15(c)(1) provides for three ways in which an amended pleading may relate back:
An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
*734(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint,5 the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1).
The statute of limitations in this case, see
Rule 15(c)(1)(C) has one prerequisite: it only applies if " Rule 15(c)(1)(B) is satisfied." Thus, an amendment changing a party or a party's name will only relate back under Rule 15(c)(1)(C) if the allegations in the amended pleading arise from the same "conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). This requirement is met here because the claims in the Second Amended Complaint are based on the same factual allegations as were set forth in the earlier versions of the complaint. See Norfolk Cty. Ret. Sys. v. Cmty. Health Sys., Inc. ,
To survive judgment on the pleadings on the basis of Rule 15(c)(1)(C), then, Plaintiff must overcome two obstacles imposed by that Rule. He must satisfy the "notice" prong of Rule 15(c)(1)(C)(i) by showing that Defendant received notice within 90 days of the filing of the original complaint, such that Defendant will not be prejudiced in defending the action. He must also satisfy the "mistaken identity" prong in Rule 15(c)(1)(C)(ii) by showing that Defendant "knew or should have known that the action would have been brought against [him], but for a mistake concerning the proper party's identity." As described below, there is a split within the Sixth Circuit regarding the mistaken identity prong, but the weight of authority strongly favors the proposition that the naming of Doe defendants in a complaint is not a "mistake *735concerning the proper party's identity" under Rule 15(c)(1)(C)(ii).
The split is based on two Sixth Circuit cases decided a decade apart. Berndt v. State of Tennessee ,
Ten years later, in Cox v. Treadway ,
[t]he naming of "unknown police officers" in the original complaint does not save the pleading. Substituting a named defendant for a "John Doe" defendant is considered a change in parties, not a mere substitution of parties. Therefore, the requirements of Fed.R.Civ.P. 15(c) must be met in order for the amendment adding the named defendant to relate back to the filing of the original complaint.
Cox ,
Thus in Berndt , on the one hand, the Sixth Circuit allowed for the possibility that an amendment naming Doe defendants after the limitations period expires can relate back under Rule 15(c). Then, on the other hand, the Sixth Circuit later held in Cox "that amendments outside the limitations period must meet the requirements of [ Rule] 15(c), [and] also held that the 'mistaken identity' requirement of the Rule cannot be met where a named party is substituted for an unknown, as opposed to a mistaken, party." Daily v. Monte ,
Daily , one of the district court decisions that recognized the split, concluded two years after Cox was decided that Cox "represent[ed] a departure from previous interpretations of Rule 15(c)," and declined to follow it, allowing an amendment naming Doe defendants to relate back. See Daily ,
Courts in this District have relied on these unpublished Sixth Circuit decisions to reach the same outcome. See, e.g., Finnerty v. Wireless Retail, Inc. ,
Moore , as an unpublished opinion of the Sixth Circuit, is not necessarily binding on this Court. Moore is, however, highly persuasive authority for how the Sixth Circuit would so rule if the issue of "John Doe" defendants and Rule 15(c) relation back were to be reconsidered. At the very least, the Moore panel deemed Cox still deserving of precedential credence. Given Moore 's reaffirmation of the continuing viability of Cox 's central holding, this Court defers to the sound judgment of the Sixth Circuit in deciding Moore .
Clark ,
The court's reasoning in Clark is even more pertinent today, since the Sixth Circuit has rendered three more unpublished decisions in the years since Clark that support the same proposition: Wiggins , Brown , and Smith (all cited supra ). Berndt , by contrast, has not had the same viability as Cox , and the Sixth Circuit has not cited it in a case that squarely addresses this issue since Moore was decided in 2008.
In arguing that his addition of Defendant Canale should in fact relate back under Rule 15(c), Plaintiff relies chiefly on Berndt , but for the reasons set forth above, Berndt 's precedential value is undermined by Cox and the various cases that have followed it. Plaintiff also cites two other Sixth Circuit cases for the general proposition that "a plaintiff may sue an unnamed 'John Doe' defendant as a placeholder until the plaintiff learns the identity of the 'John Doe' Defendant" (Pl.'s Resp. at 3, Pg ID 707), but both cases are unavailing to him. In Brown v. Owens Corning Inv. Review Comm. ,
Lastly, the parties argue fairly extensively in their briefs over when exactly Plaintiff became aware that Defendant Canale was the proper defendant in this action. Plaintiff maintains that it was not until "June or July of this year." (Pl.'s Resp. at 3, Pg ID 698.) Defendant counters that Plaintiff had notice of the fact as early as June 2014, and attaches as an exhibit to his Reply an email exchange between a representative of Plaintiff's and the former student defendant, in which the former student defendant identified "Tom Canel" as the instructor of the design class in which she allegedly made use of the Work. (See Def.'s Reply at 2-3, Pg ID 743-44; Ex. A, June 2014 Emails.)
This issue is outside the scope of the instant Motion for three distinct reasons. First and most importantly, the email exchange attached as an exhibit to Defendant's Reply is extrinsic to the pleadings, and for that reason this Court cannot consider it without converting the instant Motion for Judgment on the Pleadings to a summary judgment motion. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material *739that is pertinent to the motion."). Conversion of the instant Motion under Rule 12(d) is unnecessary because, for the reasons that follow, the precise time at which Plaintiff learned of Defendant's identity is not ultimately a relevant issue. The Court excludes this evidence accordingly.
Second, the binding precedent and ample persuasive authority discussed supra establishes that regardless of when Plaintiff learned of Defendant Canale's existence, his claims are barred because Defendant Canale was added as a defendant after the statute of limitations had run, and Plaintiff's earlier use of a Doe defendant does not constitute "a mistake concerning the proper party's identity" as required for the amendment to relate back under Rule 15(c).
Finally, the Supreme Court has held that as a general rule, "relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading. " Krupski v. Costa Crociere S.p.A. ,
Although there is arguably conflicting Sixth Circuit case law on the issue of whether an initial lack of knowledge as to the identity of a defendant constitutes a "mistake" under Rule 15(c)(1)(c)(ii), the weight of authority clearly favors a finding that it does not. Therefore, Plaintiff's addition of Defendant Canale as a defendant in this action does not relate back to the original pleadings under Rule 15(c), and both of Plaintiff's claims in this action are time-barred.
B. Defendant is immune from suit.
Even if both of Plaintiff's claims were not untimely, Defendant would be entitled to judgment on the pleadings on immunity grounds: qualified immunity to the extent that he is sued in his individual capacity, and Eleventh Amendment immunity to the extent that he is sued in his official capacity.
1. Defendant is entitled to qualified immunity to the extent that he is sued in his individual capacity.
a) Background law
"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan,
"For a right to be clearly established, '[t]he contours of the right must be sufficiently clear that a reasonable official *740would understand that what he is doing violates that right.' " Clemente v. Vaslo,
The plaintiff "bear[s] the burden of showing the claimed right was clearly established." Everson v. Leis,
b) Threshold issues
Two questions warrant discussion before the merits of Defendant's qualified immunity argument can be properly addressed: whether qualified immunity applies in the copyright context; and if so, whether Defendant, a professor at a public university, can invoke it as a "government official." The case law on these questions compels an affirmative answer to both.
Defendant cites three federal district court decisions from other circuits that have found the doctrine of qualified immunity to be applicable in the copyright context. (See Def.'s Mot. at 8-9, Pg ID 535-36 (citing Issaenko v. Univ. of Minnesota ,
Tresona Multimedia is illustrative. In that case, the U.S. District Court for the Central District of California noted the absence of binding authority on the question of whether the qualified immunity doctrine applies to copyright law, and observed that while a handful of federal district courts have determined that it does, "none of these cases engage in actual analysis on whether qualified immunity should apply to copyright law, but instead simply note that other courts have done so." Tresona Multimedia ,
Plaintiff does not seem to contest that qualified immunity can apply in copyright actions generally, but he does argue that Defendant himself may not invoke it. Specifically, Plaintiff argues that unlike members of the SVSU Board (which was originally named as a defendant in this action but subsequently dismissed by Plaintiff), Defendant "has no authority over the general operation of SVSU and does not set university policies or procedures." (Pl.'s Resp. at 5, Pg ID 709.) Plaintiff does not support this argument with legal citation, and it is without merit at any rate. The qualified immunity doctrine is not limited to high-level officials or policymakers, but broadly "serves to shield government employees from liability when performing discretionary functions in the course of their employment." Wallin v. Norman ,
c) Qualified immunity
i. Copyright Act claim (Count I)
Defendant's argument for the application of qualified immunity in this matter is grounded in federal copyright law's "fair use" exception. Defendant has persuasively shown that the fair use doctrine is unsettled enough-particularly in the educational context-that his alleged actions did not infringe Plaintiff's clearly established statutory rights. Plaintiff cites no case law in response. This Court concludes that even if this action were not time-barred, it would not survive Defendant's Motion for Judgment on the Pleadings because Defendant is entitled to qualified immunity.
The Copyright Act of 1976 provides that "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
*742In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As noted, the two prongs of the qualified immunity test are (1) "whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right" and (2) "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson,
look first to the decisions of the Supreme Court, and then to the case law of this circuit in determining whether the right claimed was clearly established when the action complained of occurred. [T]he case law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.
Clemente,
Defendant correctly asserts that the Supreme Court has yet to address the contours of "fair use" by professors and students in the educational setting. As to circuit precedent, Defendant identifies one Sixth Circuit decision and one district court decision within the Eastern District of Michigan that were on the books as of April 2014 (when Plaintiff alleges he learned of the alleged violation), and that have addressed the fair use doctrine in the educational context. Both cases involved dissemination of allegedly copyrighted materials by a commercial copying service rather than an educator or university employee. See Princeton University Press v. Michigan Document Servs., Inc. ,
Plaintiff bears the burden of showing that Defendant's alleged distribution of the Work to his students for class purposes infringed Plaintiff's clearly established statutory rights. The only case Plaintiff cites in this regard is Princeton University Press , which he cites seemingly in order to concede that "the question of what constitutes fair use in an educational setting has not been decided in this Circuit." (Pl.'s Resp. at 5, Pg ID 709.) Plaintiff's arguments are otherwise devoid of case support. He first points out that SVSU had a copyright policy in place, and contends that Defendant, as "a professor in a field where copyrights are often an issue ... would have known that copyrighted works are protected in general, and is assumed to have been aware of the University's copyright policy." (Pl.'s Resp. at 5, Pg ID 709.) Apart from this, Plaintiff argues that Defendant, as someone "working in the field, would have some idea of what constitutes fair use and what does not. He certainly knew, from his employer, that the way to avoid a breach of copyright is to request permission to use the work. There is no dispute that [Defendant] never did that." (Pl.'s Resp. at 5-6, Pg ID 709-10.)
There is no merit to these arguments. Beyond failing to cite any authority suggesting-let alone clearly establishing-that Defendant's use of the Work was not fair use, Plaintiff has all but conceded that his rights were not clearly established for qualified-immunity purposes by acknowledging that neither the Supreme Court nor the Sixth Circuit has addressed the fair use doctrine in the higher education context. In fact,
ii. DMCA claim (Count II)
Defendant has demonstrated that he is entitled to qualified immunity, to the extent that he is sued in his individual capacity, on the copyright infringement claim asserted in Count I of the Complaint. The same is true of Plaintiff's Digital Millennium Copyright Act ("DMCA ") claim in Count II of the Complaint.
The DMCA relevantly provides that "[n]o person shall, without the authority of the copyright owner or the law ... intentionally remove or alter any copyright management information, knowing, or ... having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title."
2. Defendant is entitled to Eleventh Amendment immunity to the extent that he is sued in his official capacity.
Plaintiff also pleads his claims against Defendant Canale in his official capacity as an employee of SVSU. In the instant Motion for Judgment on the Pleadings, Defendant argues that to the extent that he is sued in his official capacity, he is entitled to sovereign immunity under the Eleventh Amendment to the U.S. Constitution.
The Supreme Court has held that "absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court.... This bar remains in effect when State officials are sued for damages in their official capacity." Kentucky v. Graham ,
"[O]fficial capacity claims are essentially claims against the entity itself." Frost v. Hawkins Cty. Bd. of Educ. ,
a) Background law
The Eleventh Amendment bars "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "Although the Amendment on its face prohibits only suits brought against a state by 'Citizens of another State,' the Supreme Court has long construed the Amendment to protect states from suits filed by their own citizens in federal court on the basis of federal question jurisdiction." Reese v. State of Michigan ,
*745"Eleventh Amendment immunity attaches only to defendants that are the state itself or an 'arm of the State.' " Town of Smyrna, Tenn. v. Mun. Gas Auth. of Georgia ,
SVSU, and Defendant Canale by extension, are thus presumptively immune from suit unless one of the recognized exceptions to Eleventh Amendment immunity applies. There are three such exceptions: "First, Congress may abrogate immunity by statute where its action is a proper exercise of constitutional power.... Second, the [Eleventh] Amendment does not bar a suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law. Finally, a state may waive Eleventh Amendment protection." Carten v. Kent State Univ. ,
Only the first of these three exceptions is pertinent here. Plaintiff represented in his Response that he "is no longer pursuing his claim for injunctive relief" (Pl.'s Resp. at Pg ID 703), which takes the second exception out of play. As to the third exception, Plaintiff offers no basis for the Court to conclude that Michigan has waived its Eleventh Amendment immunity as to claims like his, and another court in this District recently determined in a different copyright suit against a Michigan public university that it has not. See Wolf v. Oakland Univ. , No. 15-13560,
The dispositive issue, then, is whether the first exception applies: that is, whether Congress has abrogated the states' Eleventh Amendment immunity as to the claims pled in this action. This is measured with a two-part test: "first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity,'; and second, whether Congress has acted 'pursuant to a valid exercise of power[.]' " Seminole Tribe of Florida v. Florida ,
In other words, to abrogate the states' Eleventh Amendment immunity through legislation, Congress must (1) clearly express its intent to do so, and (2) do so through legislation that is a valid exercise of its powers under the Fourteenth Amendment.
b) Sovereign immunity
Although Congress has legislatively attempted to abrogate state immunity from copyright claims, the statute has been invalidated by various courts as an unconstitutional exercise of federal legislative power. Those decisions are persuasive, and no court that has addressed the issue has reached the opposite conclusion. Accordingly, this Court concludes that even if Plaintiff's claims were not untimely, they would fail because Defendant has Eleventh Amendment immunity notwithstanding Congress' attempt to abrogate that immunity by statute.
i. Copyright Act claim (Count I)
Count I of the Second Amended Complaint alleges a claim for copyright infringement in violation of the Copyright Act,
*747the Copyright Remedy Clarification Act ("CRCA "),
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, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.
The CRCA's text permits no doubt that Congress clearly expressed its intent to abrogate the Eleventh Amendment immunity of states against copyright claims. The key question becomes whether the CRCA was itself a valid exercise of congressional power. A substantial number of federal courts have held that it was not, and invalidated the CRCA on that basis. Among them are the Fifth and Eleventh Circuits, as well as several district courts (including at least one in this District).
The Fifth Circuit was the first to call the CRCA's constitutionality into question. In Chavez v. Arte Publico Press ,
Eleven years later, in Nat'l Ass'n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia ,
Chavez and NABP thus reached similar outcomes on different doctrinal grounds. The Fifth Circuit's decision in Chavez had to do with whether there was enough evidence in the CRCA's legislative history of a pattern of state-committed copyright violations to justify the law's abrogation of state sovereign immunity. In NABP , by contrast, the Eleventh Circuit analyzed whether the plaintiff's allegation of copyright infringement was in itself an allegation of a due process violation by the state, and ultimately concluded that it was not. In other words, Chavez analyzed the CRCA as a prophylactic remedy for a societal problem, while NABP analyzed the CRCA as a vehicle for remedying state actions that are themselves violations of a plaintiff's constitutional rights. Both courts concluded that it was not a valid exercise of congressional power. And while these are the only two circuit courts that have weighed in on the CRCA's constitutionality thus far, various district courts have reached the same results, including several within the Sixth Circuit. See, e.g., Campinha-Bacote v. Regents of the Univ. of Michigan , No. 1:15-cv-330,
*749Wolf ,
This Court is not aware of any cases in which a court has upheld the CRCA against a challenge like those that were made in the cases discussed above. Moreover, Plaintiff has not presented the Court with contrary legal authority, evidence of a pattern of state university copyright violations, a colorable argument that his due process rights were violated, or any other reason not to follow the sound reasoning in Chavez , NABP , Wolf , and the other cases that have invalidated the CRCA's purported abrogation of state sovereign immunity.
ii. DMCA claim (Count II)
The same analysis applies to Plaintiff's DMCA claim. The CRCA purports to abrogate Eleventh Amendment immunity based on violations "of any of the exclusive rights of a copyright owner provided by [
Plaintiff has cited no other statute that purports to abrogate state sovereign immunity as to the DMCA, nor does the text of the DMCA itself demonstrate any congressional intent to that effect. SVSU and thus Defendant Canale are immune from liability on the DMCA claim under the Eleventh Amendment as well.
IV. CONCLUSION
Because Plaintiff named Defendant Canale as a defendant in this action after the governing limitations period expired, and since the amended pleading in which he did so does not relate back to the date of the original pleading under Rule 15(c), this action is time-barred. Even if it were not, Defendant Canale is entitled to qualified immunity insofar as he is sued in his individual capacity, and Eleventh Amendment immunity insofar as he is sued in his official capacity. Accordingly, the Court hereby GRANTS Defendant's Motion for Judgment on the Pleadings.
IT IS SO ORDERED.
Notes
That student was originally named as a defendant, as were SVSU and the SVSU Board. (ECF No. 16, Am. Compl.) Plaintiff subsequently agreed to dismiss these three defendants (see ECF Nos. 29, 34), leaving only Defendant Canale in the action.
The Second Amended Complaint does not specifically allege infringement of any copyrights besides that of the Work, nor does it identify any other work by Plaintiff that Defendant allegedly made unauthorized use of.
After the parties had briefed the motion but before a hearing was held, the Court certified to the United States Attorney General that the constitutionality of a federal statute-the Copyright Remedy Clarification Act ("CRCA "),
Defendant also contends that Plaintiff has not pled a continuing violation of law as is required to justify injunctive relief, but Plaintiff clarifies in his Response that he is "no longer pursuing his claim for injunctive relief." (Pl.'s Resp. at Pg ID 703.)
Federal Rule of Civil Procedure 4(m) relevantly provides that "[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time."
The earlier version of Rule 15(c) analyzed by the Berndt court was essentially identical to the version that is in effect today. The only substantial difference is that under the old Rule 15(c), the new party must have had notice of the action within the limitations period that governed the action, rather than within the 90-day period set forth in Federal Rule of Civil Procedure 4(m), as Rule 15(c) now requires. See Berndt ,
In fact, this Court is aware of only one (unpublished) Sixth Circuit decision in the last 20 years that seems to directly adopt Berndt's interpretation of Rule 15(c) by reversing a district court's denial of a plaintiff's attempt to amend a complaint outside the statute of limitations, based on the possibility that the plaintiff's naming a Doe defendant in the original complaint may have constituted a "mistake concerning the proper party's identity." See Friedmann v. Campbell ,
This conclusion is consistent with the only two other district court cases of which this Court is aware that have addressed qualified-immunity arguments based on the fair use doctrine. See Tresona Multimedia ,
In this Opinion and Order, the Court uses the terms "sovereign immunity" and "Eleventh Amendment immunity" interchangeably. See Union Pac. R. Co. v. Louisiana Pub. Serv. Comm'n ,
The specific constitutional provision from which Congress derives this power is the enforcement clause in Section Five of the Fourteenth Amendment, which provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. amend. XIV, § 5
The Supreme Court has carved out one narrow exception to this rule in the bankruptcy context, but it has no relevance here. See Cent. Virginia Cmty. Coll. v. Katz ,
Courts have used both the terms "Patent Clause" and "Copyright Clause" to refer to Section 8, Clause 8 of Article I, which empowers Congress "[t]o 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."