Bynum v. Texas A&M Univ. Athletic Dept., 17-cv-00181 (S.D. Tex.)
In early January 2017, author Michael Bynum filed suit against Texas A&M University’s Athletic Department as well as its 12th Man Foundation for alleged copyright infringement of an unpublished book that he was then writing on the original 12th man. On May 17, 2017, Texas A&M filed a motion to dismiss, citing (among other things) lack of jurisdiction.
Defendants allege that the court lacks jurisdiction, an argument that has been used before. The theory is that public universities enjoy sovereign immunity from copyright infringement suits under the Eleventh Amendment of the Constitution.
However, Congress passed the Copyright Remedy Clarification Act (CRCA) in 1990 with the express intent to remove the copyright infringement immunity of any State or its actors. Despite this, multiple federal courts around the nation have found CRCA to be unconstitutional.
For example, in Chavez v. Arte Publico Press, a federal appeals court held in 2000 that CRCA was unconstitutional because of “deficiencies” in its legislative history. The most significant of these was the fact that, at the time CRCA was passed, there were no more than seven reported incidents of state-perpetrated copyright infringement. This, the court stated, meant that there was no real injury in need of remedy.
Despite this history, Bynum now argues that there is indeed an existing injury congruent to the remedy created by CRCA. His research shows that to date there are 152 cases in which state actors have been sued (unsuccessfully) for copyright infringement. Bynum hopes that this substantial increase in cases since CRCA was enacted in 1990 will be enough to tip the scale in favor of the abrogation of state sovereign immunity for copyright infringement.