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 awards in federal court. Because sovereign immunity limits the judicial power of the federal judiciary under Article III of the Constitution, absent a valid retraction of that sovereign immunity by Congress, “a State will … not be subject to suit in federal court unless it has consented to suit, either expressly or in the plan of the convention.” While Congress has attempted to abrogate states’ immunity from liability for federal copyright law violations, over a dozen cases have found those attempts to be ineffective, including appellate decisions from the Eleventh, Fifth, and most recently the Fourth Circuits. Sovereign immunity can be an important factor in assessing the risk of adopting a CDL program. Presently, state and tribal governments and their related departments such as state university libraries, museums, or archives, are immune from damage awards. Of course, plaintiffs could still bring a suit. Sovereign immunity also lowers the risk of such a suit because the outcome may have little reward—there is no money in it for litigants.

While some risks such as exposure to damages may be minimized by sovereign immunity or the statutory damages exception, libraries can also be proactive to minimize risk with CDL by implementing some additional system design and library policies, as well as selecting materials to be lent using CDL with an eye toward risk. We conclude with several practical ideas about how to do so:
 * A.System Design and Library Policies

The six basic system design elements identified in the Statement and introduced at the outset of this paper are, we believe, all that are necessary to make a compelling legal case for CDL. There are, however, several other Page 35