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Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents

United States Court of Appeals for the Eleventh Circuit

February 24, 2011, Decided; February 24, 2011, Filed

No. 08-13417


 [***1932]  [*1300]   TJOFLAT, Circuit Judge:

This is an action for copyright infringement. The National Association of Boards of  [***1933]  Pharmacy ("NABP") seeks damages and injunctive relief under the Copyright Remedies Clarification Act, 17 U.S.C. § 511 (a) (the "CRCA"), against the Board  [**2] of Regents of the University System of Georgia (the "Board of Regents"), its members (the "Members"), and several University of Georgia officials (the "University Officials") for appropriating NABP's written materials protected by the Copyright Act. 2 The district court dismissed NABP's claims for damages as barred by the Eleventh Amendment. The court denied NABP injunctive relief on the ground that the copyright infringements complained of had ceased. NABP now appeals.

Part I lays out the facts and procedural history of the case. Part II discusses the jurisdictional issue surrounding NABP's premature notice of appeal. Part III addresses the Eleventh Amendment issues, with subpart III.A discussing NABP's claim for injunctive relief against the Members and University Officials under Ex parte Young 3 and subpart III.B discussing  [*1301]  whether the CRCA validly abrogates the States' sovereign immunity under either the Patent and Copyright Clause of Article I of the Constitution or § 5 of the Fourteenth Amendment so as to render the Board of Regents subject to a damages award. Part IV concludes.

NABP  [**3] is a nonprofit corporation whose membership consists of state and foreign pharmacy boards charged by law with licensing and regulating pharmacists. 4 NABP develops and administers two examinations the pharmacy boards use to evaluate applicants for pharmacist licenses—the North American Pharmacist Licensure Examination ("NAPLEX"), which consists of copyrighted, multiple-choice test questions, and the Multistate Pharmacy Jurisprudence Examination ("MPJE"). To sit for the NAPLEX, applicants must register with NABP and acknowledge that the exam is proprietary and subject to copyright protection.

In the summer of 1994, NABP received numerous tips that University of Georgia ("University" or "UGA") Professor Flynn Warren was gathering actual NAPLEX questions for use in a NAPLEX review course he was teaching. Believing this to be a breach of its copyrights, NABP looked into the matter and discovered that Warren was indeed using NAPLEX questions in his review course. NABP complained to UGA, and, in 1995, the Board of Regents and Warren entered into a settlement agreement with NABP, in which the Board of Regents (on behalf of UGA) and Warren agreed to cease and desist all copying, transcribing or other use of NABP copyrighted materials and examination questions. The agreement also allowed NABP to monitor compliance with the agreement. For two years, UGA was required to provide NABP with copies of all new course materials; thereafter, UGA would provide NABP with the course materials upon request.

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633 F.3d 1297 *; 2011 U.S. App. LEXIS 3543 **; 97 U.S.P.Q.2D (BNA) 1931 ***; 78 Fed. R. Serv. 3d (Callaghan) 1386; 22 Fla. L. Weekly Fed. C 1809

NATIONAL ASSOCIATION OF BOARDS OF PHARMACY, Plaintiff-Appellant, versus BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, FLYNN WARREN, JR., HENRY H. COBB, III, Individually, ELRIDGE W. MCMILLAN, in his official capacity as a member of The Board of Regents of the University System of Georgia, DONALD M. LEEBERN, JR., in his official capacity as a member of The Board of Regents of the University System of Georgia, et al., Defendants-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Middle District of Georgia. D. C. Docket No. 07-00084-CV-CDL-3.

Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., 2008 U.S. Dist. LEXIS 32116 (M.D. Ga., Apr. 18, 2008)

Disposition: AFFIRMED, in part, and VACATED and REMANDED, in part.


sovereign immunity, district court, infringement, deprivation, questions, abrogate, moot, amended complaint, Eleventh Amendment, pre-deprivation, Pharmacy, copyright infringement, Fourteenth Amendment, cessation, injunctive relief, Patent, teaching, retired, notice of appeal, remedies, damages, parte, allegations, ceased, claim for damages, due process claim, Copyright Act, injunction, terminated, immunity

Civil Procedure, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Constitutional Law, State Sovereign Immunity, Abrogation of Immunity, Copyright Law, Civil Infringement Actions, Defenses, General Overview, Federal & State Interrelationships, State Immunity, Waiver, Consent, Torts, Public Entity Liability, Immunities, Sovereign Immunity, Appeals, Notice of Appeal, Waiver of Immunity, Governments, Courts, Judicial Precedent, Justiciability, Mootness, Case or Controversy, Standards of Review, Case & Controversy Requirements, The Judiciary, Standing, Motions to Dismiss, Failure to State Claim, Voluntary Cessation Exception, Appellate Briefs, Clearly Erroneous Review, De Novo Review, Questions of Fact & Law, Remedies, Congressional Duties & Powers, Copyright & Patent Clause, Bankruptcy Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Elements, Copyright Infringement Actions, Patent Law, Infringement Actions