Safety Net: Lend With (Some) Immunity

Some libraries may be protected from lawsuits about their lending practices by sovereign immunity. Sovereign immunity is rooted in—but not limited by—the Eleventh Amendment and generally protects states and “arms of the state” from suits brought by citizens of other states, citizens of the state itself, and foreign states. Courts have also recognized common law sovereign immunity of tribal governments and tribal organizations, such as casinos, businesses, and schools.

Sovereignty Rules for State Schools

Are academic and/or public libraries considered “arms of the state”? Courts weigh many factors, including:

• (Most importantly) whether damages would be paid by state funds,
• Whether the entity performs central governmental functions, and
• How the entity is treated under state law.

Using those factors, courts have generally held that state universities and colleges (and their employees acting in their official capacities) are covered by sovereign immunity. Whether local public libraries are entitled to immunity is a complex and fact-specific question. It is unlikely for a library to be covered by immunity if it is run by a political subdivision, such as a county or city, that is independent from the state government. Examining the governance rules for the entities running the library could help identify whether the state government has any control.

As tribal organizations, libraries run by tribal governments could also have immunity from copyright claims, unless voluntarily waived by the tribal government or expressly limited by Congress.

Immunity Declaws Copyright Lawsuits (For Now)

Sovereign immunity currently protects state entities from claims of copyright infringement. Congress tried to eliminate state immunity for copyright claims with the Copyright Remedy and Clarification Act of 1990, but the Supreme Court struck it down as unconstitutional.

However, sovereign immunity is not—and shouldn’t become—a get-out-of-jail-free card:

• Sovereign immunity can be waived. Most states have waived immunity for contract claims under state law, leaving ebook licensing contracts still enforceable against state entities.
• While sovereign immunity bars monetary relief, the Ex parte Young exception allows the copyright holder to sue a state official for injunctive relief to stop anything they deem copyright infringement.
• In the future, systematic infringement of copyright by states and arms of the state could violate the Due Process Clause of the Fourteenth Amendment and enable Congress to get rid of state sovereign immunity for copyright infringement claims. If all state university libraries use sovereign immunity to protect themselves from copyright suits over their digital lending practices, Congress may be motivated and entitled to limit that immunity.