When there is a right, there is a remedy—or so the maxim goes. But when a state infringes upon your copyright, such a remedy may be more difficult to obtain. Just a year ago, the Supreme Court held in Allen v. Cooper that the Copyright Remedy Clarification Act did not abrogate a state’s sovereign immunity, and therefore, absent consent, sovereign immunity prevents suits for copyright infringement against a state. Are there any exceptions to this rule? Are there alternatives causes of action or remedies available? That is the question plaintiffs-appellants posed in Canada Hockey, L.L.C. v. Texas A&M Univ. Athletic Dep’t. And the answer, at least in federal court in the Fifth Circuit, is no, though the Fifth Circuit left open the possibility for recovery in state court.
On July 24, 2020, a panel of the Court of Appeals for the Federal Circuit issued splintered precedential opinions surrounding the interplay of state sovereign immunity under the Eleventh Amendment and required joinder of parties under Rule 19 of the Federal Rules of Civil Procedure in a patent-in-suit infringement case in Gensetix, Inc. v. Baylor College of Medicine, et al.