Heard January 9, 1989.
Decided March 22, 1989.
William F. Spallina, Watertown, Mass., for appellant.
Steven B. Rosenfeld with whom Peter L. Felcher, Jon D. Kaplon, Paul, Weiss, Rifkind, Wharton Garrison, Bernard Korman, I. Fred Koenigsberg, Edward W. Chapin, Alan L. Shulman, Silverman Shulman, P.C., Howard L. Wattenberg, Marshall, Morris, Glinert, Powell, Wattenberg Perlstein, Alvin Deutsch and Linden Deutsch, New York City, were on brief, for Nat. Music Publishers' Ass'n, Inc., American Soc. of Composers, Authors and Publishers, Broadcast Music, Inc., Music Publishers' Ass'n of the U.S. and The Songwriters Guild of America, amici curiae.
Lisa A. Levy, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief for appellees the Com. of Massachusetts Dept. of Revenue, Harvey J. Beth, Edward J. Collins, Jr., and Roberta Heinzmann.
Appeal from the United States District Court for the District of Massachusetts.
This appeal presents, face up and squarely, the vexing question of whether the Eleventh Amendment provides shelter to States in actions brought pursuant to the Copyright Act of 1976, as amended, 17 U.S.C. §§ 101-810 (1982). For the reasons set forth herein, we conclude that it does.
Plaintiff-appellant Joan F. Lane brought suit in the federal district court against the Commonwealth of Massachusetts and divers others, charging copyright infringement. The Common wealth, she said, had infringed on her copyrights in certain compilations of financial data. Plaintiff sought variegated relief, money damages included. After some backing and filling, the district court ruled that the Eleventh Amendment barred Lane's damage action against the Commonwealth. Lane v. First Nat'l Bank of Boston, 687 F. Supp. 11, 14-15, 17-18 (D.Mass. 1988).
The defendants included the Commonwealth, its Revenue Department, and its Bureau of Accounts. For ease in reference, we will treat the Commonwealth as if it were the only affected appellee, but our reasoning extends to the state agencies as well. Insofar as individual state workers have been sued in their official capacities, they come under the same umbrella. See, e.g., Northeast Federal Credit Union v. Neves, 837 F.2d 531, 533 (1st Cir. 1988) (claim against government official in representative capacity "must be regarded as [suit] against the sovereign"). The liability of state officials sued personally is unaffected by our holding.
Plaintiff then asked that 28 U.S.C. § 1292(b) be invoked and the district judge signed the requested certificate. Lane posed the question which she believed deserving of interlocutory review as follows:
. . . [D]id the district court err by dismissing a copyright claim against a state and its agencies on the basis of 11th Amendment immunity even though the U.S. Supreme Court in Atascadero State Hospital v. Scanlon, held that 11th Amendment immunity is not available if a reading of the statute conferring jurisdiction upon the federal court shows "by such overwhelming implication from the text as will leave no room for any other reasonable construction" that Congress has abrogated such immunity and the result of the application of 11th Amendment Immunity . . . is that a copyright infringement action cannot be maintained against a state anywhere, leaving states free to infringe on copyrights?
The statute permitting interlocutory certification provides in pertinent part:
When a district judge, in making in a civil action an order not otherwise appealable . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken. . . .
28 U.S.C. § 1292(b). "Only rare cases will qualify for the statutory anodyne." In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988). This, we think, is such a case.
Appellant's Petition for § 1292(b) Consideration (June 30, 1988) at 2-3 (citations omitted). Because we agreed that the issue was "sufficiently novel and important," In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988), we allowed the intermediate appeal to proceed.
The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Notwithstanding the seeming purport of the language, the Supreme Court has regularly held that the Amendment applies to suits by a citizen against her own State. See, e.g., Welch v. State Dept. of Highways, 483 U.S. 468, 97 L.Ed.2d 389 107 S.Ct. 2941, 2945, 2952-53 (1987); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890). Despite its sweep, the jurisdictional bar which the Eleventh Amendment erects is not absolute; it can be lifted by Congress or it can be waived. The focus in this case is on what Congress purposed: did it mean to abrogate State immunity to damage actions for infringement of the Copyright Act?
The precincts patrolled by abrogation are not commodious. Within their cramped confines, congressional intent is never lightly to be inferred. The jurisdictional bar endures unless and until Congress enacts a law which "express[es] its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985). Lane attempts to negotiate this narrow corridor, asserting that Congress removed the States' Eleventh Amendment immunity by passage of the Copyright Act. There are, however, several obstacles blocking her path.
It is an open question whether Congress possesses the power to blunt the prophylaxis of the Eleventh Amendment when acting pursuant to the Copyright and Patent Clause, U.S. Const. art. I, § 8, cl. 8. Admittedly, Congress can defeat the States' immunity to suit in federal court when enforcing the substantive provisions of the Fourteenth Amendment. See Welch, 107 S.Ct. at 2946; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). But it is less settled whether Congress has the power, when legislating under article I, to abolish Eleventh Amendment immunity. The Court has recently granted certiorari and heard oral argument on much of the same question, but has yet to resolve it. See United States v. Union Gas Co., 832 F.2d 1343 (3d Cir. 1987), cert. granted, ___ U.S. ___, 108 S.Ct. 1219, 99 L.Ed.2d 420 (1988) (Commerce Clause).
Intriguing though the tangram may be, we need not strain to solve it today. The case at hand is so postured that we can emulate the Court and "assume, without deciding or intimating a view of the question, that the authority of Congress to subject unconsenting States to suit in federal court is not confined to § 5 of the Fourteenth Amendment." Welch, 107 S.Ct. at 2946; see also County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 252, 105 S.Ct. 1245, 1261, 84 L.Ed.2d 169 (1985) (similar). In so doing, we adhere to well-considered precedents in this, and other, circuits, deferring decision of the question in cases susceptible to resolution on independently sufficient grounds. See, e.g., BV Engineering v. UCLA, 858 F.2d 1394, 1397 (9th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1557, 103 L.Ed.2d 859 (1989); Richard Anderson Photography v. Brown, 852 F.2d 114, 117 (4th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1988); WJM, Inc. v. Mass. Dep't of Public Welfare, 840 F.2d 996, 1001-02 (1st Cir. 1988).
Having sidestepped the first hurdle, we find the second to be insurmountable. Appellant's core contention is that the Copyright Act was meant to strip the States of their Eleventh Amendment immunity from suit in a federal venue. Leaping to such a conclusion, we think, illustrates the sanguine elevation of hope over reason.
In recent years, the Court has crafted an increasingly stringent test to determine whether Congress intended to dismantle the shelter of the Eleventh Amendment in any given instance. The touchstone, of course, is Atascadero. There, the Court remarked the critical importance of sovereign immunity in our system of federalism, 473 U.S. at 242, 105 S.Ct. at 3147, and cautioned that "it is incumbent upon the federal courts to be certain of Congress' intent" in this regard. Id. at 243, 105 S.Ct. at 3148 (emphasis supplied). To achieve such a high degree of assurance, it is essential that Congress "unequivocally express th[e] intention [to vitiate Eleventh Amendment immunity] in the statutory language" itself. Id. Because the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1982), "f[e]ll far short of expressing an unequivocal congressional intent to abrogate the States' Eleventh Amendment immunity," it failed this rigorous test. Id. at 247, 105 S.Ct. at 3150.
On occasion, some courts and commentators have attempted to redefine Eleventh Amendment immunity, at least in part, as a sort of structural sovereign immunity. We have said before that "we see nothing as turning on these characterizations. . . . [and] thus use the terms sovereign immunity and Eleventh Amendment immunity interchangeably." WJM, Inc., 840 F.2d at 1001 n. 5.
In Welch, the drumbeat grew louder. The Court reiterated the stringencies of Atascadero in considering the Jones Act, 46 U.S.C.App. § 688 (1982), sustaining an Eleventh Amendment defense because "Congress has not expressed in unmistakable statutory language its intention to allow States to be sued in federal court under the Jones Act." 107 S.Ct. at 2947. The Welch Court made clear that, to the extent earlier precedent may have suggested a more flexible approach, that precedent should be disregarded. See id. at 2948 (previous methodology, involving "discussion of congressional intent to negate Eleventh Amendment immunity . . . [,] no longer good law"). See also Brown, State Sovereignty under the Burger Court — How the Eleventh Amendment Survived the Death of the Tenth, 74 Geo.L.J. 363, 383 (1985) ("it is clear that Atascadero changed the rules for abrogation"). Against this backdrop, the height of the bar which appellant must vault becomes readily apparent.
Let us turn next to the precedent which purports to chart the junction where the Copyright Act and the Eleventh Amendment intersect. While the Supreme Court has never decided whether the Act was meant to abrogate Eleventh Amendment immunity, the straws in the wind are rather distinctive. The two circuits to address this precise issue since 1985 have concluded that the language of the Copyright Act does not measure up to the uncompromising Welch/Atascadero benchmark. See BV Engineering, 858 F.2d at 1399 (overruling Mills Music, Inc. v. State of Arizona, 591 F.2d 1278 (9th Cir. 1979)); Richard Anderson Photography, 852 F.2d at 117. Although some courts had earlier concluded that Congress, by passing the Copyright Act, intended to remove the States' immunity, see, e.g., Mills Music, 591 F.2d at 1284-86; Johnson v. University of Virginia, 606 F. Supp. 321, 324 (W.D.Va. 1985), the slate seems to have been wiped clean; in the post- Atascadero era, no court to our knowledge has held that the Copyright Act passes the reformulated test for abrogation of Eleventh Amendment protection. In addition to the Fourth and Ninth Circuits, every district court — including those which initially considered the BV Engineering and Richard Anderson Photography cases — has come out the other way. See, e.g., Cardinal Industries, Inc. v. Anderson Parrish Assoc., No. 83-1038-CIV-T-13 (M.D.Fla. Sept. 6, 1985), aff'd mem., 811 F.2d 609 (11th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 88, 98 L.Ed. 2d 50 (1987); Woelffer v. Happy States of America, Inc., 626 F. Supp. 499, 504 (N.D.Ill. 1985).
We give credit where credit is due. Lane and the amici — the latter, in particular — mount a powerful, carefully-fashioned offensive calculated to convince us that these judges are wrong; that the Court's doctrine is not as inelastic as appears at first blush; that howsoever the standard may be articulated, the Copyright Act passes Welch/Atascadero muster; and that, failing all else, the unique circumstances of this case — especially the exclusivity of the federal courts' jurisdiction in copyright matters, see 28 U.S.C. § 1338(a) — require relaxation of the ground rules. We remain unpersuaded.
The first three of these arguments telescope into a unitary theme, hawking the notion that the Copyright Act itself evinces an indisputably clear intent to override the States' Eleventh Amendment immunity. In the main, Lane relies upon the following statutory references to prove her point: 17 U.S.C. § 501 ("Anyone who violates any of the exclusive rights of the copyright owner . . . is an infringer . . . ."); 17 U.S.C. § 602 (importation of copyrighted material without copyright owner's permission not infringing if done "under the authority or for the use of . . . any State"); and a medley of exceptions built into the Act referable to "governmental bodies," e.g., 17 U.S.C. §§ 110(6), 110(8), 111(a), 112(b), 118(d)(3). We have set out the text of these statutory provisions in the Appendix. Taken individually or in the ensemble, we do not believe them to be adequate to abrogate the States' immunity.
1. Section 501. In 1976, Congress made broadscale amendments to the Copyright Act. These included elimination of the term "any person" (used in § 101 of the Copyright Act of 1909) in the course of rewriting the statutory description of potential infringers, replacing that term with the word "anyone." Lane and the amici, as did the Anderson dissent, 852 F.2d at 126 (Boyle, J., dissenting), see this modification as supremely important. Although we agree that "anyone" has a slightly more encompassing embrace than "any person," we do not believe that the switch can carry the heavy cargo which appellant assigns to it. Demonstrating that the Act was made more inclusive is a far cry from showing that it was extended to reach States.
In recent times, the Supreme Court has twice rejected pleas that equally broad statutory language evinced a categorical intent to abolish Eleventh Amendment immunity. See Welch, 107 S.Ct. at 2947 (phraseology "any seaman" not the kind of "unmistakable language" sufficient to demonstrate requisite congressional intent); Atascadero, 473 U.S. at 245-46, 105 S.Ct. at 3149 (phraseology "any recipient" not manifestative of congressional desire to expose States to suit in federal court). We agree with the Ninth Circuit that a change in statutory language is insufficient to overcome the Welch/Atascadero hurdle unless the new wording is "unequivocal" in its purport. BV Engineering, 858 F.2d at 1398. Whatever message hopeful litigants may read into the modest change in section 501, the revision, on its face, is much too cryptic to bottom resolution of the Eleventh Amendment inquiry.
2. Section 602. This is the only section of the Copyright Act which refers explicitly to State authority. The burden of section 602 is that, generally, importation of copyrighted material without permission of the copyright owner will be actionable as infringement; but there is an exception for importations "under the authority or for the use of . . . any State." 17 U.S.C. § 602(a)(1). Lane urges that this subsection would be rendered superfluous if States already enjoyed Eleventh Amendment protection in copyright cases, and points to familiar law counseling that courts should prefer constructions which give effect to each word and phrase employed by the draftsmen.
We do not deny that there is some logic to this discourse, but the Welch/Atascadero strictures constrain us from choosing among reasonable interpretations of a statute and divining from such a choice an implicit congressional recognition that the States' immunity should yield. Where, as here, a statutory provision is "susceptible to more than one reasonable interpretation," BV Engineering, 858 F.2d at 1399, it cannot suffice to penetrate the dense shielding of the Eleventh Amendment. Moreover, the ultimate dilemma is not now upon us; plaintiff's construction of section 602 is not an especially compelling one.
The exemptive phrase "under the authority or for the use of . . . any State" does not necessarily imply preexisting State liability. The exception may well have been designed not to protect the States themselves, but to safeguard, say, State employees acting in their individual capacities, cf., e.g., Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 517-18 (1st Cir. 1987) (sovereign immunity, where applicable, does not bar damage claims against officials personally), or State contractors, cf., e.g., Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 486 (1st Cir. 1989) (construing 28 U.S.C. § 1442(a)(1) to benefit "private persons . . . who act under the direction of federal officers"), or the like. Because the provision is not inconsistent with States' immunity from suit under the Copyright Act, reading into it the unequivocal statement of congressional purpose required by the Welch/Atascadero rule would be well beyond our proper province.
Amici insist that because a definitive interpretation of § 602(a)(1) cannot be confirmed in the legislative history, the statute's "plain" meaning — as a vehicle for exempting the States from importation suits — should prevail. This suggestion, however, puts the shoe on the wrong foot. So long as more than one plausible interpretation can be rendered, neither meaning, without more, can survive Welch/Atascadero scrutiny. Put another way, ordinary principles of statutory construction, which may in other contexts point to a preferred interpretation, do not suffice, in and of themselves, to unlatch the Eleventh Amendment gate. The Court, zealous in its role as the protector of the Eleventh Amendment and of the States' sovereignty, seems to be increasingly insistent upon "special rules of statutory drafting" in this context. Atascadero, 473 U.S. at 254, 105 S.Ct. at 3153 (Brennan, J., dissenting).
3. The Act As A Whole. Notwithstanding our conclusion that neither the shift in the linguistic gears of section 501 nor the enactment of the "authority . . . or . . . use" exception, 17 U.S.C. § 602(a)(1), prove congressional intent to abrogate the Commonwealth's immunity, our task is unfinished. There is nothing so singular about an Eleventh Amendment examination that impels us to view each piece of a statute in artificial isolation. Whatever change in approach has been wrought by the Welch/Atascadero duarchy, see supra note 4, "[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law . . . ." Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986) (citations omitted). What is different about Eleventh Amendment perscrutation is not the focus of the look — in determining whether Congress intended to abrogate immunity, we must continue to "focus on the language of the statute as a whole," Richard Anderson Photography, 852 F.2d at 118 n. 3; see also BV Engineering, 858 F.2d at 1398 — but the point at which the examination bears fruit. The requirement that Congress "unequivocally express th[e] intention [to vitiate immunity] in the statutory language" itself, Atascadero, 473 U.S. at 243, 105 S.Ct. at 3148, must still be fulfilled. Accordingly, we turn our attention to whether the Copyright Act as a whole demonstrates Congress' intent to subject unconsenting States to suit in federal court with the necessary degree of clarity and certitude.
In this respect, appellant's thesis builds in four stages: (1) States are "governmental bodies"; (2) Congress would not have written exemptions for States unless it thought that, without such exemptions, States would be liable under the Copyright Act; (3) Congress, therefore, necessarily expressed its intent to remove Eleventh Amendment immunity in fashioning the "governmental bodies" exemptions; and (4) any lingering doubt is resolved by the remaining provisions of the statute, especially sections 501 and 602. We find the words easy on the ear, but the music to which they are set is discordant. The rigors of the Welch/Atascadero score demand a different tune.
The phrase "governmental bodies" is as broad as it is deep. Surely, the term may include States, but it does not inevitably do so, at least in the copyright context. We concur with the Fourth Circuit that the words can sensibly "be read as applicable only to local governments or to actions by government officials so that the states' continued immunity would not render [these exemptions] superfluous." Richard Anderson Photography, 852 F.2d at 119. Although Congress may have left room for doubt through the phrasing of these exemptions, doubt is not appellant's ally in her current quest.
Lane tells us that In re McVey Trucking, Inc., 812 F.2d 311 (7th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987), compels — or at least suggests — a conclusion that "governmental bodies" and "States" be read synonymously, and that nullification of the States' sovereign immunity be inferred from inclusion of the cited references. The reliance on McVey is mislaid. There, the Seventh Circuit determined that similar statutory language — "governmental units," as used in the Bankruptcy Code — fulfilled the requirement of Atascadero and authorized suit in federal court. Id. at 326. But the operative term was defined within the same statute, viz., § 101(21) of the Bankruptcy Code, to include States. Id.; see also WJM, Inc., 840 F.2d at 1001 ("section 547(b) of the Bankruptcy Code . . ., when read with two other Code sections [including § 101(21)] plainly sets forth a cause of action against a state"). Lane is riding a horse of quite a different color; the Copyright Act is silent as to the meaning of the term "governmental bodies," and the legislative history — for what it may be worth, see infra — is ambiguous at best. To employ our own limitary definition, as appellant beseeches, would be to stand the Welch/Atascadero doctrine on its head.
Even if, as appellant urges, we were to define the phrase "governmental bodies" to include States, the exemptions would not necessarily be consistent only with a correlative conclusion that Congress must have meant to abrogate States' immunity. After all, "[c]onsistent with the Eleventh Amendment . . . federal courts may, notwithstanding the absence of consent, waiver or evidence of congressional assertion of national hegemony, enjoin state officials to conform future conduct to the requirements of federal law." Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir. 1983) (emphasis supplied); see also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908). Accordingly, exemptions for "governmental bodies," including States, might reasonably be designed only to exempt States from injunctions or other nonmonetary relief in respect to future conduct.
Amici assert that any ambiguity in the scope of the term "governmental bodies" is resolved by the legislative history. The archival data, they contend, make clear that Congress meant the term to encompass States. There are twin difficulties with this proposition. First, we question whether, in light of Welch and Atascadero, resort can be made to legislative history in determining if Congress has removed Eleventh Amendment immunity. Atascadero requires that Congress "express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." 473 U.S. at 243, 105 S.Ct. at 3148 (emphasis supplied). The Atascadero Court made no reference in its opinion to the legislative history of the Rehabilitation Act, despite respondent's reliance thereon and the dissent's lengthy analysis thereof. See id. at 248-52, 105 S.Ct. at 3150-52 (Brennan, J., dissenting). Although the Seventh Circuit recently rejected the view that Atascadero precludes courts from seeking guidance in legislative history for Eleventh Amendment purposes, McVey, 812 F.2d at 324, the conclusion is less than self-evident. Be that as it may, we have the luxury of being able to reserve the point. In this case, even were we to interpret Atascadero as permitting reliance upon legislative history, the data are sufficiently indistinct that the outcome of our search for clear meaning would be unaffected. Contrary to the rodomontade of the amici, nothing of pivotal consequence can be discerned from the most meticulous inspection of the legislative record, fairly read.
We bring this portion of our analysis to a close. It would serve no useful purpose to plod further in this direction. To the extent that appellant and/or amici mention other statutory references, the citations are plainly ineffectual. As a matter of statutory interpretation, the effort to hold the Commonwealth responsible in money damages derives insufficient sustenance from either the language of the Copyright Act or from its legislative history. Whether taken section by section or in its entirety, the statute reveals that Congress at no time and in no satisfactory manner made unmistakably clear its explicit intent to abrogate Eleventh Amendment immunity. Accord BV Engineering, 858 F.2d at 1399; Richard Anderson Photography, 852 F.2d at 120.
In urging that we find the States' sovereign immunity to have been erased, appellant mounts yet a further exhortation — and one we do not lightly dismiss. The linchpin of this contention is the federal courts' original and exclusive jurisdiction in matters arising under the Copyright Act. Given the embargo of copyright matters from state-court jurisdiction, if an infringing State cannot be made to respond in money damages in federal court, Lane theorizes that the offender cannot be sued for damages in any venue. We are told that the Court has never recognized the Eleventh Amendment as a bar to federal court jurisdiction when that jurisdiction is exclusive, and further, that Congress could not have meant to create rights under the Copyright Act without tendering any corresponding remedies. Notwithstanding their superficial appeal, these protestations do not carry the day.
The jurisdictional statute provides:
(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.
(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws.
28 U.S.C. § 1338.
The first point can be dispatched with relative ease. Admiralty libels in rem have long been within the exclusive jurisdiction of the federal courts. See, e.g., Madruga v. Superior Court, 346 U.S. 556, 560, 74 S.Ct. 298, 300, 98 L.Ed. 290 (1954); see also 28 U.S.C. § 1333. That circumstance, however, has not deflected the courts — including both the Supreme Court and this court — from holding, consistently to our knowledge, that in rem admiralty actions against unconsenting States are barred by the Eleventh Amendment. See Ex Parte New York No. 2, 256 U.S. 503, 510-11, 41 S.Ct. 592, 593, 65 L.Ed. 1063 (1921); Fitzgerald v. Unidentified, Wrecked and Abandoned Vessel, 866 F.2d 16, 17-18 (1st Cir. 1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 7 (1st Cir. 1983).
The plaintiff's second point is more troubling. If the Eleventh Amendment holds sway, suit cannot be brought in federal court against an infringing State, which means that no damage action under the Copyright Act can be brought at all. See 28 U.S.C. § 1338(a). In that important sense, Congress will have crafted a right for which it ceded no corresponding remedy against certain infringers. We are not unmindful of the seeming inequities of this result, nor of its apparent inconsistency with the broad powers granted Congress under the Copyright and Patent Clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8. By the same token, we see few countervailing policy considerations. The concerns which undergird the Eleventh Amendment — comity and solicitude for State interest, e.g., Della Grotta v. State of Rhode Island, 781 F.2d 343, 347 (1st Cir. 1986); regard for undue fiscal impact upon State coffers, e.g., Edelman v. Jordan, 415 U.S. 651, 663-68, 94 S.Ct. 1347, 1355-58, 39 L.Ed.2d 662 (1974); containment of federal court jurisdiction, e.g., Atascadero, 473 U.S. at 242-43, 105 S.Ct. at 3147-48 — seem little furthered by hewing strictly to the party line in the copyright context. See BV Engineering, 858 F.2d at 1399-1400; see also Note, Congressional Abrogation of State Sovereign Immunity, 86 Colum.L.Rev. 1436, 1450-51 (1986) (where, as in the case of the Copyright Act, a statute's impact on state sovereignty is less intrusive, the need for a specific showing of congressional intent should logically be diminished).
But these concerns, real though they may be, are more appropriate for congressional, rather than judicial, consideration. The Court has never indicated that there is a variable standard for ascertaining whether Congress meant to dissolve Eleventh Amendment immunity, and it is difficult to develop a plausible jurisprudential basis for one. Notwithstanding changes in context, the "fundamental nature of the interests implicated by the Eleventh Amendment," Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147, remains the same. To hold that the Welch/Atascadero criterion applies to certain congressional manifestations of nullificatory intent, but not to others, would make a chameleon of the Amendment, turning the question of a State's immunity into too much of a guessing game. The Eleventh Amendment is the Eleventh Amendment — or, as Gertrude Stein once wrote, "a rose is a rose is a rose," G. Stein, Sacred Emily (1913) — and the Amendment is a constant, not some strange, pleochroic phenomenon. Courts have no right to reshape its contours from case to case by rhetorical prestidigitation in order to meet the exigencies of each passing set of circumstances.
In short, we are constrained by the Court's directives, first in Atascadero and thereafter in Welch, to ignore the policy concerns evoked by exclusivity of jurisdiction, and to unlatch the gates only when "Congress [has] express[ed] its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero, 473 U.S. at 243, 105 S.Ct. at 3148; see also Welch, 107 S.Ct. at 2946 (quoting Atascadero). Unless and until Congress amends the Copyright Act to remove the States' immunity, the Commonwealth cannot be sued for infringement damages in federal court — or anywhere, for that matter.
We hasten to add that this outcome is not as intolerably harsh as appellant would have us believe. Lane is not defenseless if the State infringes. She may — as she is doing in this action — sue the responsible officials in their individual capacities for money damages. She may — as she has done here — sue private parties for abetting the allegedly wrongful acts. She may also seek prospective injunctive relief against the Commonwealth. See, e.g., Ramirez, 715 F.2d at 697.
Finally, notwithstanding her inability to mount an infringement suit per se against appellee, damages may nonetheless be available. Massachusetts has enacted a tort claims act, Mass.Gen.L. ch. 258, § 2 (1988), which is to be construed liberally to allow plaintiffs with valid causes of action to recover for governmental wrongdoing. See Alpert v. Commonwealth, 357 Mass. 306, 258 N.E.2d 755, 762 (1970). If Lane's version of the facts is genuine, she would likely be able to sue Massachusetts in a state court for, say, deceit, conversion, or unfair competition. Then, too, Mass. Gen.L. ch. 79, § 10 (1969) provides that damages may be recovered from the State whenever private property is confiscated. The statutory scheme manifests a recognition that where private property is taken for public use, a constitutional right to just compensation attaches. See Caleb Pierce, Inc. v. Commonwealth, 354 Mass. 306, 237 N.E.2d 63, 66 (1968). Since a copyright is property, Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 394, 78 L.Ed.2d 337 (1983), Lane may very well be able to sue in state court on a state-law claim for essentially the harm that she contends the Commonwealth has perpetrated. And if she exhausts State remedies and establishes that the Massachusetts legal system affords her no just compensation for the wrongful confiscation of her property, the Takings Clause of the federal Constitution might at that point enable her to pursue a damage remedy in federal court. See Williamson County Regional Planning Comm'n v. Hamilton Bank 473 U.S. 172, 194, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985); Ochoa Realty Corp. v. Faria, 815 F.2d 812, 815-17 (1st Cir. 1987).
Interestingly, plaintiff pled a cause of action against the Commonwealth for misappropriation of trade secrets in this very suit. Though that count is barred by the Eleventh Amendment — the state tort claims act waives the Commonwealth's immunity only with respect to suits in state court, a circumstance which "does not necessarily imply waiver of its eleventh amendment immunity" to suit in federal court, Della Grotta, 781 F.2d at 346; see also Atascadero, 473 U.S. at 241, 105 S.Ct. at 3147 — there is no reason to believe that the claim, for what it might be worth, could not have been maintained in state court.
As a last resort, amici argue that, whether or not Congress abrogated the States' immunity when passing the Copyright Act, Massachusetts has waived constitutional protection and impliedly acquiesced in the maintenance of a federal suit. The leitmotif of this claim is that the Commonwealth doffed the cloak of immunity by "affirmatively entering the copyright sphere — both through its ownership of copyrights and its infringement of appellant's copyright. . . ." Amicus Brief at 24. We agree that a State may waive the benefits of the Eleventh Amendment and consent to be sued in federal court. See Welch, 107 S.Ct. at 2945; WJM, 840 F.2d at 1002; Della Grotta, 781 F.2d at 346. But beyond that, the matter need not be pursued. The waiver argument was not raised by Lane either before the district court or on appeal.
We ordinarily refuse to consider points on appeal which were not advanced below. See Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987) (listing representative cases); United States v. Argentine, 814 F.2d 783, 791 (1st Cir. 1987); United States v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979). We see no grounds to retreat from the steadfast application of this praxis today. Certainly, the mere fact that the amici, like the cavalry riding belatedly to the rescue, briefed and argued their waiver theory before us does not change the case's fundamental posture. Amici are allowed to participate on appeal in order to assist the court in achieving a just resolution of issues raised by the parties. We know of no authority which allows an amicus to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore. Accord National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157, 160 n. 3 (7th Cir. 1977) (argument not made before agency, or by petitioners on appeal, cannot be asserted by amicus), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978).
Furthermore, there is another good reason why, on this occasion, we should hold fast. Interlocutory appeals under 28 U.S.C. § 1292(b) are disfavored; they are wholly discretionary, and should be entertained but sparingly. See Dupont Plaza, 859 F.2d at 1010 n. 1; McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir. 1984). Accordingly, such appeals should be strictly confined to the scope of the permission granted. In this instance, plaintiff neither requested nor received approval from the district court or from us to bring up the matter of waiver. To the exact contrary, Lane's petition for leave to appeal to this court limned the proposed question exclusively in terms of abrogation. See supra at 3. Respect for orderly procedure demands that we decline the amici's unsolicited invitation to expand the scope of review under section 1292(b) beyond the borders of the question which we originally certified.
We are not without sympathy for appellant's plight. It can persuasively be argued that our holding today, rather than furthering Congress' encouragement of creative endeavor, undermines it — and does so without a correspondingly beneficial tradeoff. If the objectives of the Copyright Act and the purposes of the Eleventh Amendment are weighed with no thumb on the scale, the societal balance likely tips in favor of abrogation. Yet courts are not free in instances like this to impose their value judgments on the community; policy choices of this kind are for the legislative, not the judicial, branch.
We are mindful, too, that senators and representatives are not omniscient. When the last broadscale revision of the federal copyright law was undertaken in 1976, Congress did not have the benefit of the Court's pronouncements in Welch and Atascadero, and might well have thought that it succeeded in eliminating the States' immunity by logical implication. But speculation of this stripe seems far too problematic a basis upon which to ground a holding that Congress intended to — and did — effectuate removal of the Eleventh Amendment shield. Guesswork would be antithetic to the bedrock Welch/Atascadero principle, which directs us to leave the jurisdictional bar in place unless Congress has enacted a law which "express[es] its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero, 473 U.S. at 243, 105 S.Ct. at 3148.
It is, we think, not without significance that the statutes considered by the Atascadero Court (the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.) and by the Welch Court (the Jones Act, 46 U.S.C.App. § 688), respectively, antedated the Copyright Act of 1976. Nevertheless, no allowance was made for Congress' possible lack of understanding of what the Court would ultimately require in this wise.
We need go no further. To endorse the position advanced by appellant and amici would compel us to create, at the crossroads where the Eleventh Amendment and the Copyright Act intersect, a jurisprudential Bermuda Triangle into which the Court's "unmistakable language" requirement would disappear without a trace. We have neither the authority nor the inclination to follow so daunting a course. For the reasons discussed herein, the States — pending some future action by the Congress — continue to enjoy sovereign immunity in regard to damage suits charging copyright infringement.