Photo Attorney

May 6, 2009

Suing the Government for Copyright Infringement

Copyright infringement is rampant these days and often is committed by those who should know better. The ultimate remedy to sue infringers in federal court. But what if the infringer is the government - can you sue it for copyright infringement?

Generally, the governement (a/k/a the "sovereign), may not be sued unless it has specifically agreed to be sued. This legal concept is called "Sovereign Immunity."

The federal government has specifically waived its immunity from copyright infringement lawsuits. 28 USC 1498(b) provides, in part:

[W]henever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims [not a district court] for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code . . . .

Because the remedies are limited to "recovery of . . . reasonable and entire compensation as damages for such infringement, including the minimum statutory damages," you may not be awarded attorneys' fees, an injunction, or big statutory damages. Thus, it may not be worth the time and expense of the suit. An option would be to attempt to negotiate a settlement.

Further, because a violation of the DMCA is not copyright infringement and the federal government has not specifically waived sovereign immunity for those claims, it can not be sued for claims based on the DMCA statutes (read my July 3, 2007 blog for more information).

Whether state governments have immunity from copyright infringement suits is not so clear. The Copyright Remedy Clarification Act ("CRCA"), at 17 U.S.C. 511(a) states that:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

However, most courts have held that Congress did not have authority to waive a state's immunity because the statute violates the Eleventh Amendment of the U.S. Constitution:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

and Congress did not have the authority to exercise the power to waive that immunity under section 5 of the Fourteenth Amendment.

So what can you do if you find that a government entity has infringed your copyright? One option is to sue the individuals responsible for the infringement. Sovereign immunity does not protect governmental employees sued in their individual capacity, even for employment-related acts. As long as the government is not responsible for paying the damages, courts generally have not extended immunity to government employees if the judgment against them will be paid only from their personal funds.

Thanks to Gregg Zivney for submitting this topic.