Brief: Sovereign Immunity Applies To Copyright Claims

Appeal: 17-1522 Doc: 57 Filed: 12/04/2017 Pg: 1 of 80
Nos. 17-1522(L), 17-1602
In the
United States Court of Appeals
for the Fourth Circuit
FREDERICK L. ALLEN et al.,

Plaintiffs-Cross-Appellants,
v.
ROY A. COOPER, III, as Governor of North Carolina, et al.,
Defendants-Appellants.
On Appeal from the United States District Court

for the Eastern District of North Carolina
RESPONSE AND REPLY BRIEF

OF DEFENDANTS-APPELLANTS
JOSHUA H. STEIN
Attorney General
Matthew W. Sawchak
Solicitor General
Ryan Y. Park
Deputy Solicitor General
Amar Majmundar
Senior Deputy Attorney General
Olga E. Vysotskaya de Brito
Special Deputy Attorney General
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
(919) 716-6400
Counsel for Defendants-Appellants
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................iv
RESTATEMENT OF ISSUES PRESENTED ON THE CROSS-APPEAL ............. 1
SUMMARY OF THE ARGUMENT....................................................................... 3
ARGUMENT ......................................................................................................... 6
Standards of Review on the Cross-Appeal ............................................... 6
Discussion ................................................................................................... 7
I. Congress Did Not Validly Abrogate the States’ Eleventh

Amendment Immunity for Copyright Claims .......................................... 7
A. Article I does not allow Congress to abrogate

Eleventh Amendment immunity .................................................... 8
1. Controlling Supreme Court precedent decides

the Article I issue in this case ............................................... 8
2. The Supreme Court’s decision in Katz does not

apply here .............................................................................. 10
B. The Clarification Act was not a valid exercise of

Congress’s Fourteenth Amendment enforcement
power ................................................................................................13
1. Congress did not rely on the Fourteenth

Amendment when it enacted the Clarification
Act .......................................................................................... 14
2. The Act is not a valid exercise of Section 5 ......................... 16
i
a. Congress did not identify a pattern of

unconstitutional conduct by states ........................... 18
i. Allen’s examples do not show

unconstitutional conduct ................................. 19
ii. Allen’s list does not describe

widespread copyright infringement
by states .............................................................20
a. Four of Allen’s examples

show only private
infringement ........................................... 22
b. Two of Allen’s examples

describe only hypotheticals ...................24
c. Three of Allen’s examples

had been disproven ................................ 25
d. The remaining five examples

do not show proven
infringement by states ............................ 27
iii. The Clarification Act cannot be

upheld based on fears of future
infringement .....................................................29
b. Congress did not adequately consider

alternatives to abrogation .......................................... 33
c. The Clarification Act was not narrowly

tailored ........................................................................ 35
C. The Eleventh Amendment bars both of Allen’s

copyright-related claims ................................................................ 36
ii
II. The Department Did Not Waive Its Sovereign Immunity

for Copyright Claims ............................................................................... 40
A. The settlement agreement does not unequivocally

waive sovereign immunity .............................................................42
B. Allen’s implied-waiver theory misreads the

settlement agreement.....................................................................45
III. The Ex Parte Young Exception to Eleventh Amendment

Immunity Does Not Apply Here ..............................................................47
IV. Legislative Immunity Bars Lawsuits Against Government

Officials for Helping to Enact a Statute .................................................. 51
V. Qualified Immunity Bars the Copyright-Infringement Claim ...............54
A. This Court has jurisdiction to consider qualified

immunity ......................................................................................... 55
B. Allen has offered no effective defense for the district

court’s misstatement of the test for qualified
immunity ......................................................................................... 57
C. A reasonable official could have believed that the

Department’s display of Allen’s works was fair use......................58
D. A reasonable official could also have believed that

Allen had agreed to allow the Department to display
his works..........................................................................................62
VI. Allen’s Cross-Appeal on His Takings Claim Lacks Merit ....................... 63
Conclusion ..........................................................................................................65
Certificate of Service
Certificate of Compliance
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Acorn Structures, Inc. v. Swantz,

846 F.2d 923 (4th Cir. 1988) .....................................................................34
Anderson v. Creighton,
483 U.S. 635 (1987) ................................................................................... 60
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ...................................................................................... 55
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ........................................................................... passim
Atascadero State Hosp. v. Scanlon,

473 U.S. 234 (1985) ................................................................................... 42
Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) .......................................................................... 22, 31, 32
Behrens v. Pelletier,
516 U.S. 299 (1996) .................................................................................... 52
Bogan v. Scott-Harris,
523 U.S. 44 (1998) .......................................................................... 52, 53, 54
BV Eng’g v. Univ. of Cal., Los Angeles,

858 F.2d 1394 (9th Cir. 1998) ............................................................. 28, 29
CCC Info. Servs. v. Maclean Hunter Mkt. Reports,

44 F.3d 61 (2d Cir. 1994)............................................................................ 23
Cent. Va. Cmty. Coll. v. Katz,

546 U.S. 356 (2006) ..........................................................................10, 11, 12
iv
Chambers v. Amazon.com,
632 F. App’x 742 (4th Cir. 2015)......................................................... 49, 50
Chavez v. Arte Publico Press,

204 F.3d 601 (5th Cir. 2000) .................................................................... 20
Citadel Corp. v. P.R. Highway Auth.,

695 F.2d 3 (1st Cir. 1982) .......................................................................... 65
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) ........................................................................... passim
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

148 F.3d 1343 (Fed. Cir. 1998), rev'd, 527 U.S. 666 (1999) ........................ 21
Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474 (4th Cir. 2005) ..................................................................... 40
Davis v. City of Greensboro,

770 F.3d 278 (4th Cir. 2014) .................................................................... 56
Dep’t of Transp. v. Adams Outdoor Adver. of Charlotte,

804 S.E.2d 486 (N.C. 2017) ...................................................................... 64
De Romero v. Inst. of P.R. Culture,

466 F. Supp. 2d 410 (D.P.R. 2006)............................................................ 13
DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004) ...................................................................... 65
Edelman v. Jordan,
415 U.S. 651 (1974) .................................................................................... 42
Ferrell v. N.C. Dep’t of Transp.,

407 S.E.2d 601 (N.C. Ct. App.),
aff'd, 435 S.E.2d 309 (N.C. 1991).......................................................... 33, 34
v
Ferrell v. N.C. Dep’t of Transp.,

435 S.E.2d 309 (N.C. 1991)........................................................................ 64
Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,

527 U.S. 627 (1999) ............................................................................ passim
Fulcrum Int’l, Inc. v. Prince George Ctr. I, Inc.,

503 F. App’x 193 (4th Cir. 2012) ............................................................... 44
Garrett v. Illinois,
612 F.2d 1038 (7th Cir. 1980) .................................................................... 64
George-Khouri Family L.P. v. Ohio Dep’t of Liquor Control,

No. 04-3782, 2005 U.S. App. LEXIS 9807 (6th Cir. 2005) ...................... 39
Goldstein v. Moatz,
364 F.3d 205 (4th Cir. 2004) .................................................................... 39
Hairston v. N.C. Agric. & Tech. State Univ.,

No. 04-1203, 2005 U.S. Dist. LEXIS 20442
(M.D.N.C. Aug. 5, 2005) ........................................................................... 13
Harbert Int’l, Inc. v. James,

157 F.3d 1271 (11th Cir. 1998) ..................................................................... 64
Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539 (1985) .................................................................................... 60
Henry v. Purnell,
652 F.3d 524 (4th Cir. 2011) ...................................................................... 60
Hohn v. United States,

524 U.S. 236 (1998) ..................................................................................... 9
Hollyday v. Rainey,
964 F.2d 1441 (4th Cir. 1992)............................................................... 52, 54
vi
Hutto v. S.C. Retirement Sys.,

773 F.3d 536 (4th Cir. 2014) ........................................................... 6, 63, 64
Idaho v. Coeur d’Alene Tribe,

521 U.S. 261 (1997) .................................................................................... 49
In re Creative Goldsmiths of Washington, D.C., Inc.,

119 F.3d 1140 (4th Cir. 1997) ..................................................................... 40
Innovative Med. Prods. v. Felment,

472 F. Supp. 2d 678 (M.D.N.C. 2006) ......................................................34
Interstate Petrol. Corp. v. Morgan,

249 F.3d 215 (4th Cir. 2001)...................................................................... 39
Jacobs v. Memphis Convention & Visitors Bureau,

710 F. Supp. 2d 663 (W.D. Tenn. 2010) .................................................... 13
John G. & Marie Stella Kenedy Mem’l Found. v. Mauro,

21 F.3d 667 (5th Cir. 1994) ....................................................................... 64
Johnson v. Jones,
515 U.S. 304 (1995) ............................................................................... 56, 57
Kennecott Copper Corp. v. State Tax Comm’n,

327 U.S. 573 (1946) ................................................................................... 44
Kensington Volunteer Fire v. Montgomery Cty.,

684 F.3d 462 (4th Cir. 2012)...................................................................... 53
Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2001) ...........................................................................28, 30, 31
Lane v. First Nat’l Bank,

871 F.2d 166 (1st Cir. 1989) ....................................................................... 26
vii
Lane v. First Nat’l Bank,

737 F. Supp. 118 (D. Mass. 1989) ...............................................................27
Lane v. Pena,
518 U.S. 187 (1996) .................................................................................... 44
Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

535 U.S. 613 (2002) .................................................................................... 13
Madison v. Virginia,
474 F.3d 118 (4th Cir. 2006) ............................................................... 42, 44
Merchant v. Bauer,
677 F.3d 656 (4th Cir. 2012) ..................................................................... 58
Mihalek Corp. v. Michigan,

814 F.2d 290 (6th Cir. 1987) ..................................................................... 26
Mktg. Info. Masters, Inc. v. Bd. of Trs. of the Cal. State Univ. Sys.,
552 F. Supp. 2d 1088 (S.D. Cal. 2008) ...................................................... 13
Nev. Dep’t of Res. v. Hibbs,

538 U.S. 721 (2003) ......................................................................... 22, 30, 31
New York v. Irving Tr. Co.,

288 U. S. 329 (1933) .................................................................................... 11
Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) ...................................................................................... 11
Phillips v. LCI Int’l, Inc.,

190 F.3d 609 (4th Cir. 1999)..................................................................... 48
Poole Foundry & Mach. Co. v. NLRB,

192 F.2d 740 (4th Cir. 1951) ...................................................................... 46
viii
Richard Anderson Photography v. Brown,

852 F.2d 114 (4th Cir. 1988) ................................................................ 28, 29
Rogers v. Pendleton,
249 F.3d 279 (4th Cir. 2001)...................................................................... 61
Romero v. Cal. Dep’t of Transp.,

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

1 F.3d 225 (4th Cir. 1993) ...........................................................................38
Santa-Rosa v. Combo Records,

471 F.3d 224 (1st Cir. 2006) .......................................................................38
Saucier v. Katz,
533 U.S. 194 (2001) ..................................................................................... 57
Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) .............................................................................. 4, 8, 16
Seven Up Pete Venture v. Schweitzer,

523 F.3d 948 (9th Cir. 2008) .................................................................... 64
Sheehan v. W. Va. Dep’t of Envtl. Prot.,

55 F. App’x 121 (4th Cir. 2003) ................................................................... 6
Skelly Oil Co. v. Phillips Petrol. Co.,

339 U.S. 237 (1952).................................................................................... 39
Smith v. State,
222 S.E.2d 412 (N.C. 1976) ................................................................... 33, 43
Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417 (1984) .............................................................................. 31, 59
ix
South Carolina v. Katzenbach,

383 U.S. 301 (1966).....................................................................................30
State Oil Co. v. Khan,

522 U.S. 3 (1997) .......................................................................... 9, 14, 16, 17
Stewart v. Hunt,
598 F. Supp. 1342 (E.D.N.C. 1984) ............................................................43
Teachy v. Coble Dairies, Inc.,

293 S.E.2d 182 (N.C. 1982) ......................................................................... 33
Tenn. Student Assistance Corp. v. Hood,

541 U.S. 440 (2004) .................................................................................... 11
Tenney v. Brandhove,
341 U.S. 367, 377 (1951) .............................................................................. 53
Transcience Corp. v. Big Time Toys, LLC,

50 F. Supp. 3d 441 (S.D.N.Y. 2014)........................................................... 49
United States ex rel. Berge v. Bd. of Trs. of Univ. of Ala.,

104 F.3d 1453 (4th Cir. 1997) .....................................................................34
United States v. Cheek,

415 F.3d 349 (4th Cir. 2005) ....................................................................... 9
Verizon Md. v. Pub. Serv. Comm’n of Md.,

535 U.S. 635 (2001) .......................................................................... 5, 48, 51
Webster Cty. Lumber Co. v. Wayne,

61 F. App’x 63 (4th Cir. 2003) .................................................................. 39
Woelffer v. Happy States of Am., Inc.,

626 F. Supp. 499 (N.D. Ill. 1985) ............................................................. 26
Woolf v. Bowles,
57 F.3d 407 (4th Cir. 1995) ........................................................................30
x
Constitutional Provisions
U.S. Const. art. I, § 8, cl. 8 .............................................................................. 9, 31
U.S. Const. art. IV, § 1 .......................................................................................... 11
Codified Statutes
17 U.S.C. § 301(a) ........................................................................................... 34, 38
17 U.S.C. § 511(a) ....................................................................................................3
N.C. Gen. Stat. § 124-4(13) ................................................................................. 59
N.C. Gen. Stat. § 132-1(a) .................................................................................... 61
N.C. Gen. Stat. § 132-1(b) ....................................................................................63
Legislative Materials
Copyright Remedy Clarification Act and Copyright Office Report on

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

Subcomm. on Patents, Copyrights and Trademarks of the
Senate Comm. on the Judiciary,
101st Cong., 1st Sess. (1989) ............................................................... passim
H.R. Rep. No. 101-282, pt. 1 (1989), as reprinted in

1990 U.S.C.C.A.N. 3949 ....................................................................... 14, 15
S. Rep. No. 101-305 (1990) .............................................................................. 14, 15
xi
RESTATEMENT OF ISSUES PRESENTED ON THE CROSS-APPEAL
I. The Copyright Remedy Clarification Act purports to abrogate the
states’ Eleventh Amendment immunity for alleged violations of federal
copyright law. In enacting the Clarification Act, Congress invoked
only its Article I power to regulate copyrights. The Supreme Court has
since held that Congress may not abrogate the Eleventh Amendment
under Article I. Was the district court right to conclude that the
Clarification Act was an invalid exercise of Congress’s Article I powers?
II. Before the events at issue here, the North Carolina Department of
Natural and Cultural Resources agreed to pay Frederick Allen a small
sum to settle his claim that the Department had infringed on a few of
his copyrighted works. The Department also agreed that Allen could
pursue remedies “provided by law or equity” if the Department
breached the settlement agreement. Was the district court right to
conclude that the Department did not expressly waive its sovereign
immunity for copyright claims?

III. The Eleventh Amendment bars takings claims in federal court against
states if those claims can be heard in state court. North Carolina
courts routinely decide takings claims. Was the district court right to
hold that Allen’s takings claim must be decided in state court?
2
SUMMARY OF THE ARGUMENT
In the decision below, the district court became the first court ever to
hold that the Copyright Remedy Clarification Act, 17 U.S.C. § 511(a) (2012),
was a valid exercise of Congress’s powers under Section 5 of the Fourteenth
Amendment. As the defendants discussed in their opening brief, that
decision misapplied the rules that govern congressional abrogation of
Eleventh Amendment immunity.
Allen defends the district court’s decision mainly by pointing to the
examples of copyright infringement that appear in the Clarification Act’s
legislative record. But those few examples do not show that Congress was
responding to widespread constitutional violations by states, as Section 5
requires. Indeed, many of the examples do not involve allegations of
infringement by states. Others rely on allegations that were shown to be
false before the Act was enacted. In any event, Congress did not consider
whether any of the examples showed infringement that rises to the level of a
constitutional violation.
Moreover, Allen’s examples do not address Congress’s failure to satisfy
the other aspects of the Section 5 test. They do not explain why Congress
did not consider alternative state-law remedies for infringement. Nor do
3
they show why Congress did not tailor the Clarification Act to focus only on
constitutional violations.
In truth, the reason why the Clarification Act cannot satisfy Section 5
is because Congress did not pass the Act under that constitutional provision.
The legislative record makes clear that Congress enacted the Act under its
Article I power to regulate copyrights. The Supreme Court has held,
however, that Article I-based abrogations are invalid. See Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 72-73 (1996).
Blocked by Seminole Tribe, Allen asks this Court to overrule that
decision. But Allen has directed his argument to the wrong court. As the
district court correctly recognized, unless the Supreme Court decides to
reconsider Seminole Tribe, that case removes Article I as a vehicle for
abrogating states’ Eleventh Amendment immunity.
Allen also cross-appeals the district court’s ruling that the North
Carolina Department of Natural and Cultural Resources did not
unequivocally waive its Eleventh Amendment immunity. The district court,
however, was right that the Department did not unequivocally waive its
immunity for copyright claims when it entered a settlement agreement with
Allen’s company. In that agreement, the Department merely acknowledged
4
that, if it “breache[d] the Agreement,” Allen could pursue remedies
“provided by law or equity,” such as suing for breach of contract. J.A. 90,
¶ 32. That breach-specific provision is not what the law would require: an
explicit waiver of the Department’s immunity for copyright claims.
With abrogation and waiver lacking, Allen next argues that his
copyright claims may proceed against the individual defendants under Ex
parte Young. But as the defendants’ opening brief shows, that exception to
Eleventh Amendment immunity does not apply here, because none of the
copyright violations alleged in Allen’s complaint are ongoing. Allen argues
that he can sue under Ex parte Young because the Department might be
engaging in other acts of infringement that are not named in Allen’s
complaint. That argument overlooks a fundamental limit on the Ex parte
Young doctrine: The relevant ongoing violation of law must be plausibly
alleged in the plaintiff’s complaint itself. Verizon Md. v. Pub. Serv. Comm’n
of Md., 535 U.S. 635, 645 (2001).
In addition, the individual defendants are also protected by two other
immunities: legislative immunity and qualified immunity. Legislative
immunity bars Allen’s copyright-preemption claim, because that claim is
based on the defendants’ roles in helping to enact a state statute. Qualified
5
immunity bars the copyright-infringement claim because a reasonable
government official could have believed that the Department’s display of
Allen’s works was both fair use and authorized by contract.
Finally, in his cross-appeal, Allen asks this Court to overrule its recent
decision that the Eleventh Amendment requires takings claims to be decided
in state court. Hutto v. S.C. Retirement Sys., 773 F.3d 536, 552 (4th Cir. 2014).
Allen offers no reason for the Court to depart from its sound judgment—one
shared by every court of appeals that has considered the issue—that state
courts are the proper forums for takings claims against states.
For all these reasons, the defendants respectfully request that this
Court reverse the district court’s order to the extent that it denied their
motion to dismiss, and affirm the court’s dismissal of Allen’s takings claim.
ARGUMENT
Standards of Review on the Cross-Appeal
Allen’s cross-appeal challenges the district court’s dismissal of certain
claims because of sovereign immunity, as well as the district court’s ruling
that the State did not waive its immunity. Those questions are reviewed de
novo. Hutto, 773 F.3d at 542 (sovereign immunity); Sheehan v. W. Va. Dep’t
of Envtl. Prot., 55 F. App’x 121, 123-24 (4th Cir. 2003) (waiver).

6
Discussion
I. Congress Did Not Validly Abrogate the States’ Eleventh

Amendment Immunity for Copyright Claims.
As the defendants showed in their opening brief, the Clarification Act
did not validly abrogate the states’ Eleventh Amendment immunity for
copyright claims. See Opening Br. 21-45. None of Allen’s arguments in
response change that conclusion.
First, the Supreme Court has directly foreclosed Allen’s argument that
the Copyright Clause in Article I grants Congress the power to abrogate.
Only the Supreme Court can reconsider that judgment.
Second, Allen is wrong that Congress enacted the Clarification Act
through its power under Section 5 of the Fourteenth Amendment to enforce
the Due Process Clause. The legislative materials that Allen cites prove that
Congress relied on Article I alone.
Moreover, even if Congress had invoked Section 5, Allen has not
shown that the Clarification Act was a valid exercise of that power.
Although Allen cites material from the Act’s legislative record, that material
fails the high standard that governs the Section 5 enforcement power.
Finally, Allen is wrong that the defendants forfeited their right to
appeal the district court’s decision to uphold Allen’s copyright-preemption

7
claim. That claim seeks a declaratory judgment that the Copyright Act
preempts a state statute, so the claim arises under the Copyright Act. As the
opening brief explains, the Eleventh Amendment bars any claim against a
state if that claim depends on the Copyright Act.
A. Article I does not allow Congress to abrogate Eleventh

Amendment immunity.
As Allen acknowledges, the Supreme Court has ruled that Congress
may not use its Article I powers to authorize lawsuits against states. See
Allen Br. 33. Allen’s arguments for disregarding this limit on Congress’s
powers fall short.
1. Controlling Supreme Court precedent decides the

Article I issue in this case.
The Supreme Court has held explicitly that “[t]he Eleventh
Amendment restricts the judicial power under Article III, and Article I
cannot be used to circumvent the constitutional limitations placed upon
federal jurisdiction.” Seminole Tribe, 517 U.S. at 72-73.
The Court has specifically applied this ban on Article I-based
abrogation to the clause at issue here: Article I, Section 8, Clause 8, which
addresses Congress’s powers over patents and copyrights. Fla. Prepaid
8
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 636 (1999).
As the Court stated in Florida Prepaid, “Seminole Tribe makes clear that
Congress may not abrogate state sovereign immunity pursuant to its Article I
powers.” Id. That conclusion applies fully here. See U.S. Const. art. I, § 8, cl.
8; Opening Br. 22-25.
To try to overcome these principles, Allen argues that Seminole Tribe
and Florida Prepaid should be overruled. Allen Br. 33-42. Allen’s proposal
that this Court overrule binding Supreme Court precedent clashes with the
orderly administration of federal law. For the judicial system to function
properly, it must be “the Supreme Court’s prerogative alone to overrule one
of its precedents.” United States v. Cheek, 415 F.3d 349, 353 (4th Cir. 2005)
(quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
Likewise, Allen’s claim that Seminole Tribe has been undermined by
later case law is for the Supreme Court alone to consider. “[Supreme Court]
decisions remain binding precedent until [the Supreme Court] see[s] fit to
reconsider them.” Hohn v. United States, 524 U.S. 236, 252-53 (1998).
In any event, as the next section shows, Allen is wrong that later
Supreme Court decisions have limited the holdings of Seminole Tribe and
Florida Prepaid in any way that matters here.
9
2. The Supreme Court’s decision in Katz does not apply

here.
As shown above, Seminole Tribe and Florida Prepaid bar Congress from
using the Copyright Clause to abrogate Eleventh Amendment immunity. It
is true that the Supreme Court has upheld Congress’s Article I authority to
expose state agencies to certain bankruptcy proceedings. Cent. Va. Cmty.
Coll. v. Katz, 546 U.S. 356, 359 (2006).1 But that decision relied on the special
nature of bankruptcy jurisdiction and the unique constitutional history of
the Bankruptcy Clause. Neither of those features applies here.
First, as the Supreme Court explained in Katz, “[b]ankruptcy
jurisdiction, at its core, is in rem,” so “it does not implicate States’
sovereignty to nearly the same degree as other kinds of jurisdiction.” Id. at
362. Bankruptcy proceedings involve “the exercise of exclusive jurisdiction
over all of [a] debtor’s property”—jurisdiction that allows the court to
distribute the property to the debtor’s creditors and discharge remaining
debts. Id. at 363-64.
1
Specifically, the Court held that Congress has the power (i) to allow
debtors to file proceedings to discharge debts owed to state agencies and (ii)
to allow bankruptcy trustees to set aside preferential transfers to state
agencies. Katz, 546 U.S. at 349.
10
Because a bankruptcy court’s jurisdiction “is premised on the debtor
and his estate, and not on the creditors,” even a bankruptcy discharge of
debts owed to a state “does not, in the usual case, interfere with state
sovereignty.” Id. at 370. For that reason, the Supreme Court has long held
that bankruptcy discharges bind state creditors. Id.; Tenn. Student
Assistance Corp. v. Hood, 541 U.S. 440, 448 (2004); New York v. Irving Tr.
Co., 288 U.S. 329, 333 (1933).
Here, in contrast, there is no dispute that a copyright-infringement
lawsuit involves in personam jurisdiction, not in rem jurisdiction. In this
lawsuit, for example, Allen has sued the State of North Carolina directly,
seeking money damages from the state treasury. J.A. 38. That kind of
lawsuit is squarely foreclosed by the Eleventh Amendment, which blocks a
“federal court . . . from awarding damages against the state treasury.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).
There is another reason as well why Katz does not apply here: the
Bankruptcy Clause’s unique constitutional history. The framers of that
clause were focused on preventing states from imprisoning debtors for debts
that another state’s courts had already discharged. Katz, 546 U.S. at 366-69.
For that reason, the Constitutional Convention considered the Bankruptcy
11
Clause in tandem with the Full Faith and Credit Clause, which requires
states to honor court decisions from other states. Id. at 368-69; see U.S.
Const. art. IV, § 1. By adopting those two clauses together, the “States agreed
in the plan of the Convention” to forgo “any sovereign immunity defense” to
bankruptcy jurisdiction. Katz, 546 U.S. at 377.
This unique constitutional history is why the Supreme Court held in
Katz that “the Bankruptcy Clause itself” abrogated sovereign immunity in
bankruptcy proceedings. Id. at 379. That distinction is what puts Katz
outside the Seminole Tribe line of cases. Id. at 362-63. In Katz, unlike this
case, “the relevant ‘abrogation’ is the one effected in the plan of the
Convention, not by statute.” Id. at 379.
Unlike the history of the Bankruptcy Clause, nothing in the history of
the Copyright Clause suggests that the framers intended for that clause to
abrogate state immunity for copyright claims. Indeed, the Supreme Court’s
decision in Florida Prepaid, which upheld Eleventh Amendment immunity
for patent claims, would make no sense if the states’ immunity for those
claims had already been disabled by the Patent and Copyright Clause. See
Florida Prepaid, 527 U.S. at 637-47.
12
Every court that has considered states’ Eleventh Amendment
immunity for copyright claims since Katz has continued to hold that
Seminole Tribe and Florida Prepaid bar Congress from abrogating immunity
under the Copyright Clause.2 Allen offers no reason for this Court to depart
from the uniform judgments of those courts.3
B. The Clarification Act was not a valid exercise of Congress’s

Fourteenth Amendment enforcement power.
As the defendants’ opening brief discusses, the district court erred by
upholding the Clarification Act under Section 5 of the Fourteenth
Amendment. See Opening Br. 26-45. There are two reasons why.
First, Congress passed the Clarification Act under Article I, not Section
5. The Supreme Court has made clear that courts may not uphold an
2
Jacobs v. Memphis Convention & Visitors Bureau, 710 F. Supp. 2d 663,
669 (W.D. Tenn. 2010); Romero v. Cal. Dep’t of Transp., No. 08-8047, 2009
U.S. Dist. LEXIS 23193, at *9 (C.D. Cal. Mar. 12, 2009); Mktg. Info. Masters,
Inc. v. Bd. of Trs. of the Cal. State Univ. Sys., 552 F. Supp. 2d 1088, 1092 (S.D.
Cal. 2008); De Romero v. Inst. of P.R. Culture, 466 F. Supp. 2d 410, 414 (D.P.R.
2006); Hairston v. N.C. Agric. & Tech. State Univ., No. 04-1203, 2005 U.S.
Dist. LEXIS 20442, at *17 (M.D.N.C. Aug. 5, 2005).
3
Allen is also wrong that the Supreme Court’s decision in Lapides v.
Board of Regents of University System of Georgia, 535 U.S. 613 (2002), shows a
retreat from Seminole Tribe. See Allen Br. 38-39. Lapides did not involve
congressional abrogation at all. Instead, the case analyzed a waiver of
Eleventh Amendment immunity.
13
Eleventh Amendment abrogation based on a power that Congress did not
invoke. See id. at 26-30.
Second, the Clarification Act was not a valid exercise of Congress’s
powers under Section 5 of the Fourteenth Amendment. See id. at 30-45.
As shown below, Allen has not cast doubt on either of these grounds
for reversing the district court’s decision.
1. Congress did not rely on the Fourteenth Amendment

when it enacted the Clarification Act.
A statutory abrogation can survive based on a particular congressional
power only when the statute’s text or legislative history shows that Congress
intended to exercise that power. Florida Prepaid, 527 U.S. at 642 n.7; see
Opening Br. 27-30.
Allen does not dispute this legal principle. Instead, he claims that
Congress did invoke its Section 5 enforcement power to pass the Clarification
Act. See Allen Br. 29. The House and Senate Reports that Allen cites,
however, refute that claim. See S. Rep. No. 101-305, at 7-8 (1990); H.R. Rep.
No. 101-282, pt. 1, at 7 (1989), as reprinted in 1990 U.S.C.C.A.N. 3949, 3955.
In those reports, Congress cited the Fourteenth Amendment only to
contrast it with the provision that Congress actually invoked: Article I. For
14
example, the House Report applied pre-Seminole Tribe case law to conclude
that Congress had the power to enact the Clarification Act under “the
Copyright Clause of Article I.” H.R. Rep. No. 101-282, pt. 1, at 7. In reaching
that conclusion, the report drew a contrast between the Article I case law
and the Section 5 case law. Id. But at no point did the report suggest that
the Clarification Act had been enacted under Section 5.4
The Senate Report, too, cited the Fourteenth Amendment only to draw
a contrast with the constitutional question that Congress really had in mind:
whether Congress can abrogate Eleventh Amendment immunity under
Article I’s Copyright Clause. S. Rep. No. 101-305, at 7-8. Like the House
Report, the Senate Report analyzed pre-Seminole Tribe case law to conclude
that the Clarification Act was constitutional because “Congress does have the
power to abrogate when it legislates under . . . the Copyright Clause.” Id. at
8.
4
The House report also cited the testimony of two witnesses to support
its conclusion that Congress had the power to enact the Clarification Act.
H.R. Rep. No. 101-282, pt. 1, at 7 n.32. Both witnesses testified only that
Congress had the power to abrogate under Article I. Neither speaker
mentioned the Fourteenth Amendment. See Copyright Remedy Clarification
Act and Copyright Office Report on Copyright Liability of States: Hearings
Before the Subcomm. on Courts, Intellectual Property, and the Administration
of Justice of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 66, 90
(1989).
15
Later history shows, however, that Congress misunderstood the scope
of its Article I abrogation power. Six years after the Clarification Act became
law, the Supreme Court decided Seminole Tribe, holding squarely that
Congress cannot abrogate the Eleventh Amendment under Article I.
Seminole Tribe, 517 U.S. at 72-73.
In sum, the congressional reports confirm that the Clarification Act
relies only on Article I, not on Section 5 of the Fourteenth Amendment.
Because Congress relied on an invalid source of constitutional authority, the
Clarification Act is unconstitutional. See Florida Prepaid, 527 U.S. at 642 n.7.
2. The Act is not a valid exercise of Section 5.
Even if Congress had enacted the Clarification Act under Section 5 of
the Fourteenth Amendment, the Act would still be unconstitutional. See
Opening Br. 32-44.
As the opening brief shows, the Clarification Act fails all three parts of
the Section 5 test for proving a valid abrogation of Eleventh Amendment
immunity:
 First, Congress did not identify a widespread pattern of
unconstitutional conduct by states. Instead, Congress acted
based on a handful of alleged state infringements of copyrights.

16
None of those infringements violated the Constitution. See id. at
32-39.
 Second, Congress did not consider the state-law remedies that
serve as alternatives to abrogation. See id. at 39-42.
 Third, abrogating Eleventh Amendment immunity for all
copyright-infringement claims was not a narrowly tailored
answer to Congress’s concerns. See id. at 42-44.
In response to these points, Allen mainly argues that the Clarification
Act is constitutional because Congress was reacting to past copyright
infringement by states. Allen Br. 30-33. Allen’s amici go on to claim that the
Act can be justified based on Congress’s fears of future infringement, as well
as alleged infringement that postdates the Act’s enactment. See Oman Br. 21;
Copyright Alliance Br. 5-6.
As shown below, these claims are mistaken. In any event, they are not
enough to support the Clarification Act under Section 5.
17
a. Congress did not identify a pattern of

unconstitutional conduct by states.
To enact valid legislation under Section 5, Congress must act in
response to state misconduct that is both widespread and unconstitutional.
Florida Prepaid, 527 U.S. at 645.
Allen attempts to meet this burden by listing fourteen examples of
states’ purported copyright infringements. See Allen Br. 21-23. That list falls
short for multiple reasons:
 The examples show mere unintentional copyright infringement.
Infringement of that type does not violate the Constitution.
 At least six of the examples are invalid because they do not even
allege copyright infringement by states.
 The remaining eight examples are too few to prove widespread
infringement, let alone widespread constitutional violations.
 In any event, the eight examples contain mere allegations, not
proven misconduct. Indeed, three examples cite cases where a
court had ruled that the alleged state infringement did not (or,
in one case, likely did not) occur.
18
For these reasons, the Clarification Act cannot satisfy the first part of
Section 5’s abrogation test.
i. Allen’s examples do not show unconstitutional

conduct.
Allen’s brief tries to sidestep a critical point: Not all copyright
infringement by a state rises to the level of a Fourteenth Amendment
violation. For a constitutional violation to occur, a state must infringe
intentionally. Florida Prepaid, 527 U.S. at 643, 645. The Clarification Act,
however, covers even unintentional infringement. See Opening Br. 32-35.
Allen himself cites parts of the Clarification Act’s legislative record that
confirm that the Act allows lawsuits over innocent infringement—that is,
infringement based on a reasonable belief that a state’s use of a copyrighted
work is lawful.5
That distinction defeats the examples of alleged infringement that
Allen cites. In those examples, Congress did not even consider whether
states had infringed intentionally. See Allen Br. 21-23. This lack of focus on
5
Allen Br. 26 (citing The Copyright Remedy Clarification Act: Hearing
Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate
Comm. on the Judiciary, 101st Cong., 1st Sess. 80-81 (1989) [hereinafter Senate
Hearing]).
19
intent shows that Congress did not enact the Clarification Act based on
copyright infringement that rose to the level of a due-process violation. See
Florida Prepaid, 527 U.S. at 645. For this reason, the Act fails the first part of
the Section 5 test. See Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th
Cir. 2000).
ii. Allen’s list does not describe widespread

copyright infringement by states.
Even if mere copyright infringement could support Congress’s use of
its Section 5 enforcement power, Allen has not shown that any copyright
infringement by states was pervasive enough to justify abrogation. See
Florida Prepaid, 527 U.S. at 640.
The fourteen examples of purported infringement that Allen cites
quickly unravel. As shown below, six of the examples do not even allege
infringement by states. Three others involve allegations that courts had
affirmatively rejected.
This sparse record of infringement does not show extensive state
misconduct, let alone intentional misconduct that violates the Constitution.
Indeed, even if one includes the three allegations that had been rejected by
20
courts, the Clarification Act’s legislative record cited just eight instances of
possible copyright infringement by states.
When the Supreme Court encountered that same number of alleged
infringements in Florida Prepaid, the Court found it insufficient to justify
abrogation. Specifically, when the Court struck down the Patent Remedy
Act as unconstitutional, it ruled that “eight patent-infringement suits
prosecuted against the States” were a mere “handful” that cannot support an
abrogation of Eleventh Amendment immunity. Florida Prepaid, 527 U.S. at
640, 645.6 As the Court observed, “the fact that there are so few reported
cases” proved that the problem of state infringement was not widespread.
Id. at 640.
The same reasoning applies here. The Clarification Act’s legislative
record offers insufficient support for the conclusion that states were engaged
in widespread copyright infringement. The few instances of alleged state
infringement that Congress considered pale in comparison to the pervasive
unconstitutional conduct needed to justify Congress’s exercise of its
6
See also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
148 F.3d 1343, 1353-54 (Fed. Cir. 1998) (identifying eight cases, in the years
leading up to the relevant enactment, where a state had been accused of
patent infringement), rev’d, 527 U.S. at 645.
21
Fourteenth Amendment enforcement powers. See, e.g., Nev. Dep’t of Res. v.
Hibbs, 538 U.S. 721, 730 (2003) (chronicling the “long and extensive history of
sex discrimination” that justified Congress’s abrogation of state immunity for
violations of family and medical leave); see also Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 371 n.7 (2001) (concluding that “around 50” allegations
of unconstitutional discrimination by states against the disabled were
insufficient under Section 5).7
In fact, as the next section describes, many of Allen’s examples do not
show alleged infringement by a state at all. And not one example involves a
judicial finding that a state had actually infringed a copyright.
a. Four of Allen’s examples show only private

infringement.
To support his claim of widespread copyright infringement by states,
Allen cites four examples that do not even involve state conduct. See Allen
Br. 22-23 (examples 2, 7, 8, 10). These examples all involve the claims of a
company called Maclean Hunter, which publishes the Red Book, a used-car
7 Even one of Allen’s supporting amici, Ralph Oman, acknowledged in

his testimony to Congress that copyright infringement by states was not
widespread. See Senate Hearing at 42. Mr. Oman repeats this concession in
his brief to this Court. See Oman Br. 21; see id. at 15 (describing state
infringement as “occasional[ ]”).
22
valuation guide. The company complained that in four states, some of its
competitors—all private companies—were, without authorization, using its
car valuations to calculate insurance rates. Senate Hearing at 140-45.
Maclean Hunter did not allege that any state agency or official had
engaged in copyright infringement. Instead, it complained that four states
had adopted Red Book values as legal standards, prompting private infringers
in those states to claim that the values had passed into the public domain.
See id. at 141-42; see also CCC Info. Servs. v. Maclean Hunter Mkt. Reports, 44
F.3d 61, 73-74 (2d Cir. 1994) (allowing Maclean Hunter’s lawsuit against the
private infringers to proceed to trial).8
In short, the four examples of infringement identified by Maclean
Hunter did not even involve state conduct. Thus, those examples are not
evidence of infringement—let alone widespread infringement—by any state.
8
Ultimately, Maclean Hunter’s concerns proved unfounded, because the
courts rejected the private companies’ defenses. See Maclean Hunter, 44
F.3d at 74 (holding that “a state’s reference to a copyrighted work as a legal
standard for valuation” does not “result[ ] in loss of the copyright”). The
Eleventh Amendment therefore did not impede Maclean Hunter’s copyright-
infringement lawsuits against its private competitors. Id.
23
b. Two of Allen’s examples describe only

hypotheticals.
In addition, two of Allen’s examples point to hearing testimony that
merely describes hypothetical ways in which states could infringe. In neither
case did the speaker claim that a state had actually engaged in the described
conduct. See Allen Br. 22-23 (examples 3, 7).
First, Allen incorrectly states that Kansas infringed copyrights by
selling “video and audiovisual products to local schools.” Id. at 22 (example
3). In the cited passage from the Senate Hearing, a representative of an
audiovisual company merely described hypothetical “ways that the program
in my catalogue could be threatened if state agencies” engaged in future
copyright infringement. Senate Hearing at 155 (emphasis added). The
speaker observed that the University of Kansas provided services similar to
his company’s. Id. at 155-56. Because of this competition, he worried that
“the University of Kansas could ” infringe on the company’s copyrights. Id. at
156 (emphasis added).
Second, Allen asserts that New Jersey refused to license a software
product because of the Eleventh Amendment. See Allen Br. 22-23 (example
7). The cited hearing testimony, however, does not show any actual
24
infringement. In that testimony, a software-company representative
explained that New Jersey was using the company’s product “on a trial basis,
meaning they were attempting to decide whether or not they would install”
it. Senate Hearing at 95. The representative then expressed concern that
New Jersey might decide to infringe, because “[o]ver a month has now passed
and the State has yet to purchase” the product. Id. He did not state,
however, that any infringement had actually occurred.
Thus, the Kansas and New Jersey examples merely show hypothetical
speculation about ways states could infringe. They offer no evidence of any
copyright infringement by states, let alone evidence of widespread
intentional infringement.
c. Three of Allen’s examples had been

disproven.
Three of Allen’s other examples are also invalid, because they had
already been rejected by courts before the Clarification Act was enacted. See
Allen Br. 22 (examples 2, 4, 5).
First, Allen cites a lawsuit that alleged that Michigan “copied
photographs without permission, in an advertising program.” Allen Br. 22
(example 5). That claim was dismissed on the merits by the Sixth Circuit,
25
which held that the state agency did not infringe on the copyright holder’s
work. Mihalek Corp. v. Michigan, 814 F.2d 290, 297 (6th Cir. 1987).
Second, Allen cites a complaint that Illinois infringed a private
company’s advertising materials. Allen Br. 22 (example 2). The district court
in that case dismissed the claim because it was barred by the Eleventh
Amendment. See Woelffer v. Happy States of Am., Inc., 626 F. Supp. 499, 504
(N.D. Ill. 1985). At an earlier stage in the case, however, the same court held
that the company was not likely to succeed on the merits of its claim because
it could not “establish[ ] the threshold requirement of infringement” by the
state. Woelffer v. Happy States of Am., Inc., No. 85 C 3301, 1985 U.S. Dist.
LEXIS 20762, at *3 (N.D. Ill. Apr. 12, 1985).
Third, Allen cites a complaint that Massachusetts “copied compilations
of financial data” created by a bank. Allen Br. 22 (example 4). The First
Circuit held that the Eleventh Amendment barred this claim against the
state itself. See Lane v. First Nat’l Bank, 871 F.2d 166, 167 (1st Cir. 1989).
However, the First Circuit allowed the lawsuit to proceed against an
individual state official. Id. at 174. When that claim went to trial on the
merits, “the jury found that [the state had] made no use of” the company’s
26
financial documents, and therefore had not infringed. Lane v. First Nat’l
Bank, 737 F. Supp. 118, 119 (D. Mass. 1989).
In sum, each of these allegations of infringement proved unfounded.
Thus, these allegations show no misconduct at all, let alone widespread,
intentional copyright infringement.
d. The remaining five examples do not show

proven infringement by a state.
After the above discussion, all that remain are five allegations of
copyright infringement by states. But even these five examples are mere
allegations. They do not describe proven infringement.
Three of the examples rely on nothing more than hearsay statements
from a company representative to Congress. See Allen Br. 22-23 (examples 6,
9, 12). The weakness of this evidence undercuts the weight of these
examples in the abrogation analysis.9 When measuring whether a
9
Two of these examples arise from comments by the Motion Picture
Association of America. Allen Br. 23 (examples 9, 12). In its comments, the
association claimed that prisons in Wisconsin and North Carolina were
showing movies to inmates without paying copyright-license fees.
Attachment to Brief of Ralph Oman at 14-15, Doc. 54.
The association stated that it had sued Wisconsin and had won an
injunction, but no lawsuit was apparently filed against North Carolina. Id.
27
constitutional problem is widespread, the Supreme Court has discounted
this kind of “anecdotal evidence”—evidence “clipped from floor debates and
legislative reports.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 82, 89 (2001)
(holding that abrogation of Eleventh Amendment immunity for age-
discrimination claims was invalid). Instead, the Court has focused on
“reported cases” in which relevant claims were actually “prosecuted against
the states.” Florida Prepaid, 527 U.S. at 640.
Here, Allen cites only two reported cases where a state was credibly
accused of copyright infringement. See BV Eng’g v. Univ. of Cal., Los Angeles,
858 F.2d 1394 (9th Cir. 1998); Richard Anderson Photography v. Brown, 852
F.2d 114 (4th Cir. 1988).
Even these two isolated cases do not show constitutional violations.
Neither case necessarily shows intentional infringement.
The association stated that North Carolina was reportedly acting based
on a memo from a lawyer at the North Carolina Department of Justice. Id. at
14. After a diligent search, counsel for the defendants have been unable to
locate this memo or any other information about the alleged events.
In any event, these examples do not show widespread infringement by

states. Indeed, the association acknowledged that most states agree to
obtain licenses to show movies to inmates. Id. at 13.
28
In any event, both of these cases arose from preexisting contractual
relationships between state agencies and copyright holders. See BV
Engineering, 858 F.2d at 1395; Richard Anderson Photography, 852 F.2d at 116.
Under these circumstances, the copyright holders could have protected their
interests by bargaining for an explicit waiver of the state’s sovereign
immunity. The legislative history of the Clarification Act acknowledges this
opportunity for copyright holders.10
Thus, even Allen’s two best examples do not show that the
Clarification Act was enacted to remedy widespread and persisting
unconstitutional state conduct. Indeed, these examples show an alternative
to abrogation of the states’ Eleventh Amendment immunity.
iii. The Clarification Act cannot be upheld based

on fears of future infringement.
Allen’s amici seek to shift the focus away from events that preceded
the Clarification Act by discussing events that could, or allegedly did,
10
See Senate Hearing at 152 (testimony of William Taylor) (“we have
required state institutions to obtain an effective waiver of their rights under
the Eleventh Amendment before contracting” to sell them products); id. at
95 (testimony of David Eskra) (same). Copyright holders might respond that
bargaining for sovereign-immunity waivers “slows the [contracting] process.”
Id. Mere inconvenience for contracting parties, however, cannot justify
abrogating the states’ Eleventh Amendment rights.
29
happen later. Those efforts fail as a matter of law. The Supreme Court has
made clear that where, as here, a statute addresses property interests,
Section 5 requires Congress to assemble a record of past constitutional
violations by states.
Amicus Ralph Oman opines, for example, that copyright holders
testified in favor of the Clarification Act because they feared that states could
infringe copyrights in the future. Oman Br. 12. The Supreme Court,
however, has rejected fear of future infringement as a proper basis for
abrogating the Eleventh Amendment. Florida Prepaid, 527 U.S. at 641. To
justify a nationwide abrogation, Congress must amass “evidence that
unremedied . . . infringement by States had become”—that is, had already
become—“a problem of national import.” Id. (discussing patent
infringement).
To be sure, Congress can sometimes use Section 5 to deter future
constitutional violations. Hibbs, 538 U.S. at 727-28. But prophylactic
legislation is allowed only when it addresses state violations of fundamental
rights: violations such as discrimination based on gender or race. Id. at 735
(gender); South Carolina v. Katzenbach, 383 U.S. 301, 308-13 (1966) (race).
30
In contrast, when Congress acts to protect rights that are not
fundamental—that is, rights whose infringement does not trigger
heightened scrutiny under Fourteenth Amendment doctrine—a much
stricter test applies. Hibbs, 538 U.S. at 735-36. In that situation, Congress
may abrogate Eleventh Amendment immunity only to remedy a widespread
pattern of actual, past constitutional violations. Id. Even measures to bar
“state discrimination against the disabled or the elderly”—measures that
undergo rational-basis review—require a record of actual, pervasive
unconstitutional conduct by states. Id. at 735; see Garrett, 531 U.S. at 371-72
(applying this strict rule to measures against disability discrimination);
Kimel, 528 U.S. at 89 (same for measures against age discrimination).
That requirement of past, pervasive, unconstitutional conduct applies
here. Copyrights, like other property interests, are non-fundamental
interests. The Supreme Court has already reached this conclusion regarding
patents by discounting future infringement as a proper basis for abrogation.
See Florida Prepaid, 527 U.S. at 641. The rule for copyrights should be the
same, because patents and copyrights stem from the same clause of the
Constitution. See U.S. Const. art. I, § 8, cl. 8; Sony Corp. of Am. v. Universal
City Studios, Inc., 464 U.S. 417, 439 (1984) (noting the “kinship between
31
patent law and copyright law” because of their common constitutional
origin).
The arguments of the Copyright Alliance fare no better. The Alliance
reports infringement allegations that date from 2001 and 2002—more than a
decade after the Clarification Act was enacted. See Alliance Br. 5-6.11
These allegations of post-enactment infringement cannot support the
Clarification Act, for two reasons. First, they do not show unconstitutional
conduct. The Alliance does not even claim that any of the alleged
infringements were intentional. See id. Second, these allegations are
irrelevant, because none of them were before Congress when Congress
considered the Clarification Act. See Opening Br. 36-37; see also Garrett, 531
U.S. at 368 (focusing on “the legislative record” of the relevant statute);
Kimel, 528 U.S. at 89 (same); Florida Prepaid, 527 U.S. at 645 (same).
* * *
In sum, the Clarification Act fails the first part of the Fourteenth
Amendment test, because Congress did not enact the statute in response to a
widespread pattern of constitutional violations by states.
11
The Alliance also describes allegations by Getty Images, but does not
report the date of—or any basis for—the allegations. Alliance Br. 7-8.
32
b. Congress did not adequately consider alternatives

to abrogation.
The Act also fails the second part of the Fourteenth Amendment test:
Congress did not sufficiently consider whether state-law alternatives could
achieve the same result as abrogation. See Opening Br. 39-42.
Allen does not deny that a number of state-law claims can remedy
conduct that also amounts to copyright infringement. Indeed, even in this
lawsuit, Allen has filed a claim for unfair and deceptive trade practices, and a
takings claim, based on the same allegations that underlie his copyright
claims. See J.A. 36-37, ¶¶ 80, 84.
During the legislative process, Congress did not address state-law
remedies like these as alternatives to blanket abrogation of Eleventh
Amendment immunity. Had Congress considered these remedies, it would
have learned that many of them are viable alternative claims for aggrieved
copyright holders.
At least in some circumstances, North Carolina has waived sovereign
immunity in its own courts for a number of possible substitute claims,
including claims for breach of contract, takings, and some torts. See Teachy
v. Coble Dairies, Inc., 293 S.E.2d 182, 185 (N.C. 1982) (torts); Smith v. State,
222 S.E.2d 412, 423-24 (N.C. 1976) (breaches of contract); Ferrell v. N.C. Dep’t
33
of Transp., 407 S.E.2d 601, 604 (N.C. Ct. App.) (takings), aff’d, 435 S.E.2d 309
(N.C. 1991).
Although the Copyright Act might preempt some of these state-law
claims, many of them survive preemption.12 See 17 U.S.C. § 301(a). Indeed,
takings claims have constitutional stature and therefore cannot be
preempted.
But even if no state-law remedies in this area survived preemption,
Congress still would have had an alternative to abrogation: it could have
made the Copyright Act non-preemptive (entirely or on certain issues).
Congress failed even to consider this alternative to Eleventh Amendment
abrogation.
To try to save the Clarification Act, Allen vainly tries to defend
Congress’s failure to consider making the Copyright Act non-preemptive.
He argues that this alternative to abrogation could have undermined the
uniformity of federal copyright law. Allen Br. 32. In the closely related area
of patent law, however, the Supreme Court has already rejected that
12
See, e.g., United States ex rel. Berge v. Bd. of Trs. of Univ. of Ala., 104
F.3d 1453, 1463 (4th Cir. 1997) (some conversion claims not preempted);
Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir. 1988) (same for
breach-of-contract claims); Innovative Med. Prods. v. Felment, 472 F. Supp.
2d 678, 684 (M.D.N.C. 2006) (same for unfair-competition claims).
34
uniformity argument. In Florida Prepaid, the Court acknowledged “[t]he
need for uniformity in the construction of patent law,” but held that this
concern does not justify disregarding an alternative to abrogating Eleventh
Amendment immunity. 527 U.S. at 645. The same reasoning applies here.
In sum, because Congress did not adequately consider state-law
alternatives to abrogation, the Clarification Act does not satisfy the second
part of the test for a valid abrogation based on Section 5.
c. The Clarification Act was not narrowly tailored.
The Clarification Act also fails the third part of the Section 5 test,
which requires that Congress’s chosen remedy be proportional to the scope
of the problem Congress sought to address. See Opening Br. 42-44.
Allen mainly argues that the Clarification Act meets this
proportionality requirement because copyright infringement by states was
allegedly widespread. See Allen Br. 30-32. Even if that were true, however,
Allen cannot explain why Congress did not limit any abrogation to the
subset of infringement that violates the Constitution—intentional
infringement. See Florida Prepaid, 527 U.S. at 643, 645.
To focus on unconstitutional infringement, the Clarification Act could
have been tailored in any number of ways. For example, it could have been
35
limited to “nonnegligent infringement or infringement authorized pursuant
to state policy.” Id. at 647. Indeed, in Florida Prepaid, the Supreme Court
held that the Patent Remedy Act was not narrowly tailored because it lacked
such a limit. Id. Moreover, here, as in the patent context, Congress did not
limit its abrogation effort to “States with questionable remedies or a high
incidence of infringement.” Id.
Because Congress did not tailor the Clarification Act in any of these
ways, the Act fails the proportionality element of the Section 5 test.
For all of these reasons, the Clarification Act is unconstitutional.
C. The Eleventh Amendment bars both of Allen’s copyright-

related claims.
Because the Clarification Act is not a valid abrogation of the Eleventh
Amendment, that amendment bars both of Allen’s copyright-related claims:
count I, which seeks a declaration that a state statute is preempted by the
Copyright Act, and count II, which accuses the defendants of copyright
infringement. See Opening Br. 22-45.
Allen argues that the State has forfeited its appeal from the district
court’s decision to sustain count I, the copyright-preemption claim. See
Allen Br. 62-63. That argument misreads the defendants’ opening brief.
36
The opening brief makes clear that the defendants’ arguments against
the Clarification Act apply to both of Allen’s copyright-related claims. Those
claims, after all, were the only claims that the district court sustained. 244
F. Supp. 3d 525, 545-46 (E.D.N.C. 2017) (J.A. 281). For example, the brief
explains that:
 sovereign immunity “defeats Allen’s complaint,” Opening Br. 17;
 “the district court erred by holding that Eleventh Amendment
immunity does not bar this lawsuit,” id.;
 “multiple immunities bar Allen’s claims,” id. at 20;
 “the State is immune from Allen’s claims,” id. at 45; and
 the defendants “request that this Court reverse the parts of the
district court’s order that denied their motion to dismiss,” id. at
20, 70.
Notably, moreover, the defendants’ opening brief never states or implies that
its arguments against abrogation are limited to count II of Allen’s complaint.
See id. at 22-45.
In addition, Allen’s waiver argument overlooks the origin of count I of
the complaint. A request for a declaratory judgment that a state law is
37
preempted by the Copyright Act—the request that Allen makes in count I—
arises under the Copyright Act’s preemption provision. See 17 U.S.C.
§ 301(a); J.A. 33-34, ¶¶ 62-69.
Allen’s own complaint makes clear that the copyright-preemption
claim arises under the Copyright Act. Count I of the complaint seeks a
declaration that a North Carolina statute is invalid under the Copyright Act’s
preemption provision, section 301(a). J.A. 33-34, ¶ 65 (quoting 17 U.S.C.
§ 301(a)). That claim of preemption is completely entangled with
substantive copyright law. Section 301(a) preempts only those state laws that
grant rights “equivalent to any exclusive rights within the scope of federal
copyright.” Rosciszewski v. Arete Assocs., 1 F.3d 225, 229 (4th Cir. 1993)
(emphasis added). Because of this entanglement with substantive copyright
law, a claim that seeks a declaration of copyright preemption “arises under
the Copyright Act.” Santa-Rosa v. Combo Records, 471 F.3d 224, 227 (1st Cir.
2006) (addressing a claim that sought a declaration of rights under a
different provision of the Copyright Act).
The fact that Allen has cited the Declaratory Judgment Act in his
copyright-preemption claim does not make that claim any less copyright-
related. The Declaratory Judgment Act “does not confer jurisdiction.”
38
Interstate Petrol. Corp. v. Morgan, 249 F.3d 215, 221 n.7 (4th Cir. 2001) (en
banc). It allows federal courts to fashion a declaratory remedy, but only if
the federal courts already have jurisdiction to decide a given claim. Webster
Cty. Lumber Co. v. Wayne, 61 F. App’x 63, 65 (4th Cir. 2003); accord Skelly Oil
Co. v. Phillips Petrol. Co., 339 U.S. 667, 671-72 (1952). Here, if there were
federal jurisdiction over Allen’s copyright-preemption claim, it would come
from section 301(a) of the Copyright Act.13
As Allen admits, however, a Copyright Act-based claim against a state
agency is barred by the Eleventh Amendment—barred, that is, unless the
Clarification Act is a valid abrogation of the Eleventh Amendment. See Allen
Br. 16-18. Thus, the Clarification Act is the linchpin of Allen’s copyright-
related claims. By attacking the validity of the Clarification Act, the
defendants have attacked Allen’s claims that depend on that statute: his
preemption claim and his infringement claim. See Opening Br. 22-45.
13
Moreover, even if Allen’s claim were construed as arising directly
under the Declaratory Judgment Act, it would still fail. That statute “does
not explicitly authorize suits against states and therefore cannot be used to
circumvent the Eleventh Amendment.” George-Khouri Family L.P. v. Ohio
Dep’t of Liquor Control, No. 04-3782, 2005 U.S. App. LEXIS 9807, at *8-9 (6th
Cir. 2005); see Goldstein v. Moatz, 364 F.3d 205, 219 (4th Cir. 2004) (“[i]f a
declaratory judgment proceeding actually constitutes a suit against the
sovereign, it is barred absent a waiver” or abrogation).
39
Finally, even if there were any doubt on preservation, Allen’s
arguments still would not defeat the defendants’ Eleventh Amendment
immunity. “Like other issues relating to subject-matter jurisdiction,
Eleventh Amendment immunity may be asserted at any time in litigation.”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 481
(4th Cir. 2005). Under this rule, a state cannot abandon its immunity under
the Eleventh Amendment unless a plaintiff meets the stringent test for
showing a substantive waiver of that immunity. See In re Creative
Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1144 (4th Cir. 1997)
(considering Eleventh Amendment defense raised for the first time on
appeal). As the next section shows, no substantive waiver has occurred here.
For all of these reasons, the defendants’ Eleventh Amendment
immunity stands intact.
II. The Department Did Not Waive Its Sovereign Immunity for
Copyright Claims.
Here, the district court held that the Department did not substantively
waive its Eleventh Amendment immunity. 244 F. Supp. 3d at 532-33 (J.A.
258-59). Allen’s cross-appeal from that ruling fails.
40
Eleventh Amendment waivers “must be unequivocally expressed.”
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
682 (1999). Under that principle, federal courts apply a strong presumption
against waiver. Here, that presumption confirms that the Department did
not waive its immunity for copyright claims when it agreed to settle a variety
of disputes related to the Queen Anne’s Revenge. The settlement agreement
merely recognized that the parties could enforce the settlement agreement
itself.
Allen’s theory of implied waiver also fails. Not only is waiver by
implication forbidden in the Eleventh Amendment context, but Allen’s
theory disregards key aspects of the settlement agreement. Among other
points, the agreement contemplated that the Department might make
Allen’s works available to the public.
In sum, because the Department did not unequivocally express any
consent to be sued on copyright claims, the district court correctly held that
no waiver occurred here.
41
A. The settlement agreement does not unequivocally waive

sovereign immunity.
A contract can waive a state’s Eleventh Amendment immunity only by
stating a waiver “by the most express language or by such overwhelming
implication from the text as [will] leave no room for any other reasonable
construction.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985)
(quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). Because of this
requirement, federal courts “indulge every reasonable presumption against
waiver.” College Savings Bank, 527 U.S. at 682; see also Madison v. Virginia,
474 F.3d 118, 131 (4th Cir. 2006) (any “ambiguities are construed in favor of
immunity”).
Under these principles, the district court was right to hold that the
Department did not waive its Eleventh Amendment immunity. 244 F. Supp.
3d at 533 (J.A. 259). Nothing in the 2013 settlement agreement that Allen
cites is a clear and unequivocal waiver of the Department’s Eleventh
Amendment immunity. That agreement—which involved the Department,
Allen’s company (Nautilus), and the separate company that discovered the
Queen Anne’s Revenge (Intersal)—does not mention the Department’s
Eleventh Amendment immunity at all. See J.A. 84-90.
42
Instead, the settlement agreement states only that the parties may sue
for breach of that same agreement. The relevant provision is titled “Effect of
Breach of Agreement.” J.A. 90, ¶ 32. It says that if any party “breaches this
Agreement,” the aggrieved party may pursue “remedies provided by law or
equity.” J.A. 90, ¶ 32.
This breach-specific language is miles away from an express waiver of
the Department’s Eleventh Amendment immunity for copyright claims. It
simply reaffirms the parties’ right to sue for breach of the settlement
agreement itself.14 Here, however, Allen has not sued for breach of that
agreement. See J.A. 33-38.
The Supreme Court has repeatedly held that generic consent-to-suit
provisions like the one Allen cites here do not waive Eleventh Amendment
immunity. For example, the Court has held that states do not waive
immunity merely by agreeing to “sue and be sued,” College Savings Bank, 527
U.S. at 676, or by consenting to be sued “in any court of competent
14
North Carolina has waived sovereign immunity for breach-of-contract
claims, but that waiver is limited to lawsuits filed in its own courts. Smith,
222 S.E.2d at 423-24; see also Stewart v. Hunt, 598 F. Supp. 1342, 1351
(E.D.N.C. 1984) (holding that North Carolina’s waiver of sovereign immunity
for contract claims “does not apply to eleventh amendment immunity
[because] the state has provided a remedy in its own courts”).
43
jurisdiction,” Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573, 577-
79 (1946). As these decisions confirm, a state does not “unequivocally
express” an intent to waive Eleventh Amendment immunity simply by
acknowledging that it can be sued for breach of a settlement agreement.
College Savings Bank, 527 U.S. at 676.
Finally, even if any waiver had occurred here, it would be limited to
contract claims. Courts “strictly construe the scope of any alleged waiver in
favor of the sovereign.” Madison, 474 F.3d at 131; accord Lane v. Pena, 518
U.S. 187, 192 (1996). For example, this Court has affirmed a district court’s
ruling that a waiver of immunity for contract claims did not extend even to
quasi-contractual theories of relief, such as promissory estoppel. Fulcrum
Int’l, Inc. v. Prince George Ctr. I, Inc., 503 F. App’x 193, 195 (4th Cir. 2012).
Similar reasoning bars Allen’s argument that the Department waived its
immunity for copyright claims by stating that Allen could sue if the
Department “breaches this Agreement.” J.A. 90, ¶ 32.
In sum, the district court was right to hold that the Department did
not waive its Eleventh Amendment immunity for copyright claims.
44
B. Allen’s implied-waiver theory misreads the settlement

agreement.
Allen also argues that when the Department agreed to settle his past
accusations of infringement, it impliedly agreed to be sued for copyright
infringement. Allen Br. 60-62. That waiver-by-implication theory fails as a
matter of law. Sovereign-immunity waivers “cannot be implied but must be
unequivocally expressed.” College Savings Bank, 527 U.S. at 682.
Moreover, even if implied waivers were allowed, Allen’s waiver theory
would still fail on this record. Allen’s theory overlooks at least three key
aspects of the settlement agreement.
First, nothing in the agreement bars the Department from using
Allen’s works. To the contrary, the agreement contemplates future use. It
allows the Department to retain large volumes of Allen’s archival footage and
photographs. J.A. 88, ¶ 21. The agreement also allows the Department to
make these items “available to the public” as public records. J.A. 88, ¶ 21; see
infra pp. 63-65. By recognizing Allen’s works as public records, the
agreement contradicts any argument that Allen could sue the Department
for displaying them publicly.
Second, in the settlement agreement, the Department did not concede
Allen’s earlier claims of infringement. Although the Department agreed to

45
pay Allen’s company $15,000 “for any copyright violations” the Department
might have committed, the parties also agreed that this payment could not
be construed as “an admission of any wrongdoing.” J.A. 84, 89, ¶¶ 2, 22.
Indeed, as a matter of law, a party’s decision to settle is “not an admission of
past liability.” Poole Foundry & Mach. Co. v. NLRB, 192 F.2d 740, 743 (4th Cir.
1951). Under these principles, the Department did not admit that any use of
Allen’s works was wrongful. That point destroys the premise of Allen’s
implied-waiver argument. See Allen Br. 60.
Third, only a small part of the agreement even addressed Allen’s
accusations of infringement. Most of the agreement had nothing to do with
Allen or his company. Instead, the agreement mainly focused on clarifying
the respective rights of the Department and Intersal, the company that
discovered the Queen Anne’s Revenge. See J.A. 84-90. For example, about
half of the agreement’s provisions addressed the Department’s and Intersal’s
rights to commercial replicas and promotional opportunities involving the
shipwreck. See J.A. 85-87, ¶¶ 4-16. Because the agreement barely addressed
Allen’s works, the agreement’s breach-specific language does not impliedly
include copyright claims like those here.
46
As these points show, the settlement agreement paid only glancing
attention to Allen’s infringement allegations. The agreement does not state
that the Department’s prior use of Allen’s works was wrongful. Moreover, in
the agreement, the Department secured the right to make those works
available to the public under the state’s existing public-records law. J.A. 88,
¶ 17. Allen is therefore wrong that the agreement can be read as impliedly
waiving the Department’s Eleventh Amendment immunity for future
copyright claims.
III. The Ex Parte Young Exception to Eleventh Amendment

Immunity Does Not Apply Here.
As a perceived backstop for his abrogation and waiver theories, Allen
argues that his copyright claims survive against the individual defendants
under the Ex parte Young exception to Eleventh Amendment immunity. See
Allen Br. 43-44. As the opening brief explains, however, Allen’s argument
fails because all six of the works that Allen’s complaint calls infringing have
been removed from the public domain. See Opening Br. 46-49.
Allen does not deny this point. See Allen Br. 47. Nor could he: The
web addresses that once displayed these works—web addresses that the
47
complaint reproduces in full—confirm that Allen’s works are no longer on
public display.15 See J.A. 28, ¶ 44.
To try to overcome this problem, Allen argues that his claims satisfy Ex
parte Young because the Department might be engaging in other acts of
infringement—acts that appear nowhere in his complaint. See Allen Br. 48-
49. That argument overlooks a fundamental limit on the Ex parte Young
doctrine: The allegedly “ongoing violation of federal law” must appear in
“the complaint.” Verizon, 535 U.S. at 645 (quoting Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring)).
15
Allen implies that this Court cannot consider the content of the
websites he listed in his complaint. Allen Br. 45-46. To the contrary, on an
appeal from a Rule 12 motion, this Court may consider any materials that a
plaintiff’s complaint incorporates by reference. Phillips v. LCI Int’l, Inc., 190
F.3d 609, 618 (4th Cir. 1999); see Opening Br. 47 n.13. Phillips, for example,
involved a news article that the plaintiffs had “explicitly relied on” in their
complaint, but had “failed to attach.” 190 F.3d at 618. Because the article
“was integral to and explicitly relied on in the complaint,” this Court
considered the article in its entirety. Id.
Allen also errs when he argues that the district court made an
evidentiary ruling to exclude the websites. See Allen Br. 45-47. Instead, the
district court never addressed the websites. Because the court held that
Eleventh Amendment immunity did not apply here, it did not even discuss
the Ex parte Young exception to that immunity. See 244 F. Supp. 3d at 535
(J.A. 262). The court thus did not consider how the websites affected the Ex
parte Young analysis.
48
At the time he filed his complaint, Allen alleged an ongoing violation
by naming six allegedly infringing works, saying where those works were
publicly displayed, and specifying the precise location in the works where
Allen’s copyrighted material appeared. See J.A. 28, ¶ 44. Allen does not deny
that the Department is no longer displaying those six works.
For any other works, the complaint does not allege enough facts to
give the defendants fair notice of any alleged infringements. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a plaintiff to state a
copyright-infringement claim, the law under Iqbal requires the plaintiff to
identify, among other things, “specific original works” that are protected by
copyright and “by what acts . . . the defendant infringed.” Transcience Corp.
v. Big Time Toys, LLC, 50 F. Supp. 3d 441, 449 (S.D.N.Y. 2014).
This Court’s decision in Chambers v. Amazon.com enforced these
Iqbal-based requirements. 632 F. App’x 742, 744 (4th Cir. 2015). In that case,
a musician alleged that the defendants had made “numerous copies of [his]
CD” available for sale, but he did not back up that assertion with specific
allegations on how the infringement occurred. Id. As this Court recognized,
merely identifying a copyrighted work and generally asserting that the
defendant infringed it lacks the specificity required by Iqbal. See id.; see also
49
Iqbal, 556 U.S. at 678 (holding that a complaint does not state a plausible
claim if it “tenders naked assertions devoid of further factual enhancement”).
Allen’s complaint has the same infirmity. It only alludes to the
possibility of infringements other than the listed six, using the phrase “at
least.” J.A. 28, ¶ 44. That language fails under Iqbal because it does not
allege any specific facts to support Allen’s vague allusion to other
infringement.
In a final attempt to imply an ongoing violation, Allen’s brief in this
Court hints at a completely new infringement claim. That brief includes a
computer screenshot that displays part of an unspecified website. Allen Br.
48. The image depicts a child looking at a museum exhibit, along with text
that encourages the public to visit the museum. Although Allen implies that
this image infringes his copyrighted work, he does not identify the website
or even explain which part of the image allegedly contains his work. See id.16
16
In fact, the image shows the website of the Department’s maritime
museum. Out of an abundance of caution, the museum has removed the
image from its website. The physical exhibit shown in the image once
included a photograph taken by a representative of Allen’s company. That
photograph was removed from the exhibit in June 2013, long before Allen
filed this lawsuit.
50
The law bars that vague argument. When a plaintiff tries to use Ex
parte Young to survive a motion to dismiss, he must rely on allegations that
appear in his complaint itself. Verizon, 535 U.S. at 645. Here, any
infringement that is plausibly alleged in Allen’s complaint has ended.
Because Allen’s complaint does not describe any ongoing violation of federal
law, the Ex parte Young exception does not apply here.
IV. Legislative Immunity Bars Lawsuits Against Government

Officials for Helping to Enact a Statute.
Allen’s copyright-preemption claim against the individual defendants
also fails because of legislative immunity.
Legislative immunity bars lawsuits against government officials based
on their involvement in the legislative process. Because of that immunity,
the district court erred by declining to dismiss Allen’s copyright-preemption
claim against the individual defendants. That claim relies solely on the
individuals’ efforts to get a state statute enacted. See Opening Br. 49-53; J.A.
30-31, ¶¶ 50, 53-54.17
17
Allen does not argue that the district court’s decision to “defer[ ]”
ruling on legislative immunity is anything other than a denial of the
immunity. 244 F. Supp. 3d at 541 (J.A. 272). Nor could he. Legislative
immunity frees government officials not only from liability, but also from the
51
In response, Allen claims that legislative immunity applies only to
legislators and to officials whose functions are “equivalent to [the functions]
of legislators.” Allen Br. 52. That is not the law. As the Supreme Court has
held expressly, “officials outside the legislative branch are entitled to
legislative immunity when they perform legislative functions,” such as
proposing legislation and lobbying for its passage. Bogan v. Scott-Harris, 523
U.S. 44, 54 (1998); see id. at 47, 55.
Here, Allen’s complaint makes clear that the challenged conduct was
part of the legislative process.
For Governor Cooper, the complaint states that the Governor’s
predecessor signed the bill that became the statute Allen attacks here. J.A.
costs and burdens of litigation. Hollyday v. Rainey, 964 F.2d 1441, 1443 (4th
Cir. 1992). Here, because the district court’s deferral of a ruling on legislative
immunity exposes the individual defendants to those costs and burdens, it
was an “implicit denial” that this Court may review now. Behrens v. Pelletier,
516 U.S. 299, 303, 307 (1996).
Moreover, Allen misreads the district court’s opinion when he claims

that the court called for factfinding before it could rule on legislative
immunity. See Allen Br. 52. The court wrote only that “based on the
allegations in the amended complaint, a ruling on whether legislative
immunity applies is premature.” 244 F. Supp. 3d at 541 (J.A. 272). That vague
language does not express a need for factfinding on any issue.
52
31, ¶ 54. The Supreme Court has held that a “Governor’s signing or vetoing
of a bill” is an immune legislative act. Bogan, 523 U.S. at 55.
For the other individual defendants, the complaint alleges that they
“introduced, lobbied for passage of, and obtained passage of” the statute in
question. J.A. 30, ¶ 50. This Court has held directly that legislative
immunity covers activities like these. Kensington Volunteer Fire v.
Montgomery Cty., 684 F.3d 462, 471 (4th Cir. 2012) (holding that executive-
branch officials are immune from claims based on “proposing” legislation,
“submitting” legislation to a legislative body, and “advocating for” particular
legislation); accord Bogan, 523 U.S. at 47, 55 (holding that an executive
official was immune for proposing legislation).
Finally, Allen is also wrong that the defendants’ purported “wrongful
motivation” for their legislative acts displaces the immunity here. Allen Br.
13, 52-53. Because legislative immunity is an absolute protection, it does not
turn “on the motive or intent of the official.” Bogan, 523 U.S. at 55. After all,
an “absolute immunity would be of little value” if a plaintiff could pierce it by
offering “speculation as to motives.” Id. at 54 (quoting Tenney v. Brandhove,
341 U.S. 367, 377 (1951)). Because of that concern, legislative immunity
53
applies even when government officials are accused of having an improper
motive for participating in the legislative process. Hollyday, 964 F.2d at 1443.
For these reasons, legislative immunity bars Allen’s copyright-
preemption claim against the individual defendants.
V. Qualified Immunity Bars the Copyright-Infringement Claim.
The district court also erred when it declined to apply qualified
immunity to the copyright-infringement claim against the individual
defendants. See 244 F. Supp. 3d at 541 (J.A. 272).
As the defendants’ opening brief discusses, this ruling was erroneous
for three reasons. First, the district court analyzed the “clearly established
law” element of qualified immunity at far too high a level of generality.
Second, a reasonable government official could have believed that the
Department’s limited display of Allen’s works was fair use. Third, a
reasonable official could have believed that Allen had agreed, in a binding
agreement with the Department, to allow the Department to display his
works. See Opening Br. 53-69.
Allen responds by arguing that this Court lacks appellate jurisdiction
to consider qualified immunity. Allen Br. 4-5. He also argues that
54
factfinding is necessary before a court may rule on the qualified-immunity
defense. Id. at 53-59. As shown below, Allen is wrong on both points.18
A. This Court has jurisdiction to consider qualified immunity.
Allen challenges the Court’s appellate jurisdiction over the defendants’
qualified-immunity appeal, but his challenge fails.
A district-court order that rejects qualified immunity at the motion-to-
dismiss stage is immediately appealable under the collateral-order doctrine.
Iqbal, 556 U.S. at 672. Appellate courts have jurisdiction to review whether
“the facts pleaded” in a complaint “sufficiently allege[ ] a clearly established
violation of law.” Id. at 673.
Here, the individual defendants have demonstrated that the factual
allegations in Allen’s complaint do not show a violation of clearly established
18
Allen also suggests, without explanation, that the doctrine of qualified
immunity might not apply in copyright cases. See Allen Br. 53. That
suggestion contradicts binding Supreme Court precedent. The Supreme
Court has held that qualified immunity can apply whenever a government
official is accused of violating any federal “statutory . . . right.” Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011). Although qualified immunity rarely comes up
in copyright litigation, that is only because copyright lawsuits against state
officials are rare. When these rare cases have arisen, however, federal courts
have not hesitated to dismiss them under qualified immunity—usually
because a reasonable official could have believed that her display of
copyrighted materials was fair use. Opening Br. 56 & n.15 (citing cases).
55
law about which a reasonable official would have known. Opening Br. 53-69.
This Court has jurisdiction to consider that argument. See, e.g., Iqbal, 556
U.S. at 672; Davis v. City of Greensboro, 770 F.3d 278, 282 (4th Cir. 2014)
(holding that “a ruling on the sufficiency of the pleadings [to pierce qualified
immunity] at the motion-to-dismiss stage” is “an appealable final decision”).
To try to defeat appellate jurisdiction, Allen relies on Johnson v. Jones,
515 U.S. 304 (1995). That reliance is misplaced.
In Johnson, the Supreme Court held that a summary-judgment order is
not immediately appealable if it denies qualified immunity because of a
dispute over the probative value of the plaintiff’s forecast of evidence. Id. at
311. This exception to the collateral-order doctrine is narrow. It applies only
when the defendant seeks “to appeal a district court’s determination that the
evidence is sufficient to permit a particular finding of fact after trial.” Id. at
314.
Here, the Johnson exception does not apply. At this stage of the case,
the question is not whether Allen could marshal evidence to support his
allegations. Instead, the defendants’ point is that Allen’s allegations—even if
true—do not describe a violation of clearly established law.
56
That challenge to the legal sufficiency of Allen’s complaint satisfies the
collateral-order doctrine. See Iqbal, 556 U.S. at 672. This Court therefore has
jurisdiction to review the district court’s decision that denied qualified
immunity to the individual defendants.
B. Allen has offered no effective defense for the district

court’s misstatement of the test for qualified immunity.
When the district court denied qualified immunity here, it reasoned
that “the law of [copyright] infringement is clearly established.” 244 F. Supp.
3d at 541 (J.A. 272). As the opening brief discusses, that reasoning negated
Allen’s burden to show that the law that the defendants allegedly violated
was clearly established. To pierce qualified immunity, a plaintiff must show
that the relevant points of law were clearly established in the “specific
context of the case,” not at the high level of generality that the district court
used here. Opening Br. 54 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
In response, Allen repeats the district court’s error by addressing the
law of copyright infringement in abstract terms. See Allen Br. 53 (arguing
that “the standard for copyright infringement is well known”). That
generalized discussion falls short of what the law requires: an explanation of
how the law was clearly established in factual contexts like this one. See,
57
e.g., Merchant v. Bauer, 677 F.3d 656, 665 (4th Cir. 2012) (“Although it was
clearly established that [the plaintiff] had a Fourth Amendment right not to
be arrested without probable cause, we assess the right in a more
particularized sense in the context of the specific facts of this case.”).
C. A reasonable official could have believed that the

Department’s display of Allen’s works was fair use.
The district court not only misstated the law on qualified immunity,
but misapplied those principles to Allen’s complaint. Opening Br. 56-65.
Allen’s counterarguments fail.
Allen’s complaint describes conduct that a reasonable official could
consider fair use. Allen alleges that the Department used a few seconds of
his footage across five educational videos and then posted the videos online
for free. J.A. 28, ¶ 44. He also alleges that the Department displayed a single
image in a museum newsletter and then made the newsletter available
online for free. J.A. 28, ¶ 44. A reasonable government official could believe
that this extremely limited use of Allen’s works—done solely for educational
purposes, not for profit—met the definition of fair use. Opening Br. 56-65.
Allen responds by arguing that the fair-use doctrine cannot apply here
because the Department’s use was commercial. Specifically, he claims that
58
the Department’s use was “intended to benefit the spouse and friends” of the
individual defendants. Allen Br. 55.
In the abstract, Allen is right that using another person’s copyrights for
a commercial or profit-making purpose is presumptively unfair. However,
Allen overlooks the point that “[t]he contrary presumption” applies when the
use is for “a noncommercial, nonprofit activity.” Sony, 464 U.S. at 449; see
Allen Br. 55-58.
Here, Allen’s complaint offers no plausible basis for overcoming that
contrary presumption. Allen does not deny that the Department has an
educational and cultural mission. See N.C. Gen. Stat. § 121-4(13) (2015). He
does not deny that the materials he attacks here advanced that mission.
More importantly, he does not explain how including a few seconds of
footage in educational videos and posting the videos online for free could
have possibly generated profits.
To try to pierce the presumption of fair use, Allen argues that he seeks
to profit from his copyrighted works. Allen Br. 55. The Supreme Court has
made clear, however, that the presumption does not depend on whether the
copyright holder uses his works commercially. Instead, it depends on the
nature of the defendant’s allegedly infringing use.
59
In Sony, for example, the Court applied the presumption of fair use to
a lawsuit on whether viewers could record television programs. 464 U.S. at
419. Although the programs had immense commercial value to their owners,
the presumption of fair use applied because the relevant use—“private home
use” by individuals—was noncommercial. Id. at 425, 449; see also Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (applying
presumption of fair use because the user did not “stand[ ] to profit”).
Finally, Allen is wrong that qualified immunity depends on what the
individual defendants themselves purportedly knew “about the specifics of
permissible copyright use.” Allen Br. 58. A government official’s “subjective
belief about the nature of his conduct is ‘irrelevant’ for qualified immunity
purposes.” Henry v. Purnell, 652 F.3d 524, 535 (4th Cir. 2011) (en banc)
(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Instead, the
question is “what a hypothetical, reasonable officer would have thought in
th[e] circumstances” alleged. Id. Here, because a reasonable official could
have believed that displaying a few seconds of Allen’s footage in educational
videos was fair use, qualified immunity bars Allen’s infringement claim.
Because of the limited nature of the Department’s alleged use, Allen is
exaggerating when he claims that approving fair use here would “immunize
60
all state employees everywhere against personal liability for copyright
infringement.” Allen Br. 54. A ruling for the defendants would stand for a
much narrower proposition: a reasonable official could believe that fair use
protects displaying snippets of a copyrighted work for a nonprofit,
educational purpose.
In any event, “qualified immunity affords protection to a government
officer who takes an action that is not clearly forbidden—even if the action is
later deemed wrongful.” Rogers v. Pendleton, 249 F.3d 279, 286 (4th Cir.
2001). Under this standard, even if this Court concluded that fair use did not
apply, qualified immunity would bar the copyright claim here because a
reasonable official could have believed that the Department’s use was lawful.
D. A reasonable official could also have believed that Allen

had agreed to allow the Department to display his works.
Qualified immunity also applies here because a reasonable government
official could have believed that Allen had authorized the Department to
display his copyrighted works. See Opening Br. 66-69.
In his brief, Allen does not deny any of the following points:
 He agreed in 2013 to allow the Department to retain a number of
still images and over eighty hours of video footage that depicted
61
the Department’s excavation of the Queen Anne’s Revenge. J.A.
27-28, ¶ 40.
 Those works are public records under North Carolina law. See
N.C. Gen. Stat. § 132-1(a) (defining a public record as including
“photographs” and “films” that the State receives “in connection
with the transaction of public business”).
 The 2013 agreement between Allen and the Department
stipulated that North Carolina’s public-records law applied to
the Department’s handling of Allen’s footage. It also stipulated
that the Department may “mak[e] records available to the
public” under that law. J.A. 88, ¶ 17.
Under these circumstances, a reasonable government official could
have believed that Allen had authorized the Department to display his media
publicly.
Allen’s main response is to state that, as a general matter, possession of
a copyrighted work “does not confer the right to copy it.” Allen Br. 59. But
as the above points show, the agreement granted the Department far more
than mere possession of Allen’s works. The agreement treated the works as
62
public records that “the people may obtain copies of” under North Carolina
law. N.C. Gen. Stat. § 132-1(b).
Qualified immunity therefore bars the infringement claim against the
individual defendants.
VI. Allen’s Cross-Appeal on His Takings Claim Lacks Merit.
For all the reasons described above, the district court erred when it
sustained Allen’s copyright claims. In contrast, the district court was right to
dismiss all of Allen’s other claims. See 244 F. Supp. 3d at 540 (J.A. 271). Allen
has cross-appealed the dismissal of one of these claims—his takings claim—
but the cross-appeal lacks merit. See Allen Br. 42-43.
By holding that Allen’s takings claim belongs (if anywhere) in North
Carolina state court, the district court simply followed controlling precedent
from this Court. As this Court has held, “the Eleventh Amendment bars
Fifth Amendment taking claims against States in federal court when
the State’s courts remain open to adjudicate such claims.” Hutto, 773 F.3d at
63
552. This view is shared by “every other court of appeals” that has
considered the question. Id. at 553.19
Here, as the district court correctly observed, North Carolina courts
commonly decide takings claims filed against the State by private property
holders. See, e.g., Dep’t of Transp. v. Adams Outdoor Adver. of Charlotte, 804
S.E.2d 486, 492 (N.C. 2017). In North Carolina state courts, therefore,
sovereign immunity does not bar a property holder from bringing a takings
claim. Ferrell v. N.C. Dep’t of Transp., 435 S.E.2d 309, 312-13 (N.C. 1991).
Allen’s only response is to observe that this Court has not yet applied
the Eleventh Amendment to an alleged taking of copyrights. See Allen Br.
42. That historical accident does not matter, however, because this Court
has spoken in categorical terms: “the Takings Clause does not override the
Eleventh Amendment.” Hutto, 773 F.3d at 552. That rule applies to all
takings claims, regardless of the source of the property right involved.
19
See, e.g., Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 954 (9th
Cir. 2008); DLX, Inc. v. Kentucky, 381 F.3d 511, 526 (6th Cir. 2004); Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1279 (11th Cir. 1998); John G. & Marie Stella
Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 674 (5th Cir. 1994); Citadel Corp.
v. P.R. Highway Auth., 695 F.2d 3, 33 n.4 (1st Cir. 1982); Garrett v. Illinois, 612
F.2d 1038, 1040 (7th Cir. 1980).
64
In sum, the district court was right to dismiss Allen’s takings claim,
because the Eleventh Amendment reserves the claim for the North Carolina
state courts.
CONCLUSION
The defendants respectfully request that this Court reverse the parts of
the district court’s order that denied the defendants’ motion to dismiss. The
defendants also request that the Court affirm the district court’s dismissal of
Allen’s takings claim.
65
Respectfully submitted,
JOSHUA H. STEIN
Attorney General
Matthew W. Sawchak
Solicitor General
/s/ Ryan Y. Park

Ryan Y. Park
Deputy Solicitor General
Amar Majmundar
Senior Deputy Attorney General
Olga E. Vysotskaya de Brito

Special Deputy Attorney General
North Carolina Department of Justice

Post Office Box 629
Raleigh, North Carolina 27602
(919) 716-6400
December 4, 2017
66
CERTIFICATE OF SERVICE
I certify that on this 4th day of December, 2017, I filed the foregoing
brief with the Clerk of Court using the CM/ECF system, which will
automatically serve electronic copies on all counsel of record.
/s/ Ryan Y. Park

Ryan Y. Park
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 28.1(e)(2)(A)(i) because it contains 12,736 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies
with the typeface and type-style requirements of Fed. R. App. P. 32(a)(5) &
(6) because it has been prepared in a proportionally spaced typeface: 14-
point Constantia font.
/s/ Ryan Y. Park

Ryan Y. Park

Brief: Sovereign Immunity Applies To Copyright Claims

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Appeal: 17-1522 Doc: 57 Filed: 12/04/2017 Pg: 1 of 80

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

FREDERICK L. ALLEN et al.,

On Appeal from the United States District Court

RESPONSE AND REPLY BRIEF

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

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

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

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

I. Congress Did Not Validly Abrogate the States’ Eleventh

A. Article I does not allow Congress to abrogate

1. Controlling Supreme Court precedent decides

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

B. The Clarification Act was not a valid exercise of

1. Congress did not rely on the Fourteenth

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

a. Congress did not identify a pattern of

i. Allen’s examples do not show

ii. Allen’s list does not describe

a. Four of Allen’s examples

b. Two of Allen’s examples

c. Three of Allen’s examples

d. The remaining five examples

iii. The Clarification Act cannot be

b. Congress did not adequately consider

c. The Clarification Act was not narrowly

C. The Eleventh Amendment bars both of Allen’s

II. The Department Did Not Waive Its Sovereign Immunity

A. The settlement agreement does not unequivocally

B. Allen’s implied-waiver theory misreads the

III. The Ex Parte Young Exception to Eleventh Amendment

IV. Legislative Immunity Bars Lawsuits Against Government

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

A. This Court has jurisdiction to consider qualified

B. Allen has offered no effective defense for the district

C. A reasonable official could have believed that the

D. A reasonable official could also have believed that

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

Acorn Structures, Inc. v. Swantz,

Atascadero State Hosp. v. Scanlon,

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

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

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

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

Chavez v. Arte Publico Press,

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

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

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

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

Davis v. City of Greensboro,

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

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

DLX, Inc. v. Kentucky,

Ferrell v. N.C. Dep’t of Transp.,

Ferrell v. N.C. Dep’t of Transp.,

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

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

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

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

Harbert Int’l, Inc. v. James,

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

Hohn v. United States,

Hutto v. S.C. Retirement Sys.,