Are Public Universities Immune from Copyright Infringement?
Nettleman v. Florida Atlantic University, 16-cv-81339 (S.D. Fla.)
by Tyron Jensen
On January 5, 2017, the U.S. District Court for the Southern District of Florida dismissed a complaint for copyright infringement filed by Dr. Charles Nettleman against the Florida Atlantic University Board of Trustees. The complaint alleged that FAU published Nettleman’s copyrighted teaching materials—without his consent—to students enrolled in certain courses through its learning management system, Blackboard. (click here for a more in-depth review of the complaint.)
FAU moved to dismiss the complaint on the grounds that, as a public university, it should be immune from federal copyright infringement lawsuits under the Eleventh Amendment. The motion presented an unsettled issue: “under what circumstances, if any, does the Copyright Remedies Clarification Act (“CRCA”) abrogate the States’ sovereign immunity, pursuant to Section 5 of the Fourteenth Amendment?” In resolving the question, the court recognized that “a copyright is a property interest protected under the Due Process Clause,” which cannot be deprived without due process of law.
One option for providing due process is a pre-deprivation hearing. But this option is “not required where the complaint did not allege that the university defendant acted on an established state procedure that was ‘designed to deprive individuals of their copyrights.'” Nettleman’s complaint alleged that three procedures had the purpose of depriving him of his property: (1) that FAU ignored Nettleman’s refusal to use his materials; (2) that it allowed other professors to access and distribute his materials; and (3) that it limited access to Blackboard in a manner designed to prevent copyright owners from becoming aware of infringement.
The court considered each of these allegations in turn, and determined that none of them were established state procedures, because they did not involve any FAU officials “implementing a generalized government policy to appropriate copyrighted material.” Rather, the court concluded that “Nettleman’s allegation is tantamount to an accusation of ‘administrative negligence’ for FAU’s failure to institute ‘better procedures’ that might have blocked access to his Materials.”
Thus, the court held that due process did not require a pre-deprivation hearing, “so long as a meaningful post-deprviation remedy for the loss is available.” Here, the court found that the complaint failed to allege that Nettleman’s options for post-deprivation remedies were inadequate, and suggested that a common law tort suit might be able to make him whole.
As a result, the court concluded that FAU had sovereign immunity—not abrogated by CRCA in this case—and thus dismissed Nettleman’s complaint for copyright infringement.