On March 24, 2020, the US Supreme Court held, unanimously, that state governments cannot be sued for damages in copyright infringement suits because Congress did not validly abrogate state sovereign immunity in enacting the Copyright Remedy Clarification Act of 1990 (“CRCA”). Although this result was dictated largely by prior precedent, the Court notably did not conclude that the states are wholesale immune from copyright infringement suits seeking damages, and, in fact, the Court’s opinion provides a roadmap to future congressional action that could validly suspend the states’ immunity to such suits. Whether Congress can or will follow the Court’s advice, however, remains an open question.
Allen v. Cooper arose from the discovery, in 1996, of the wreckage of a famous pirate ship, the Queen Anne’s Revenge, which served as the flagship vessel of the pirate Blackbeard until it sank off the coast of North Carolina in 1718. The marine salvage company which uncovered the wreckage subsequently hired filmmaker Frederick Allen to document the recovery efforts. Over nearly a decade, Allen took photographs and created videos of the salvage operation, while also registering copyright in all of the works. When North Carolina published Allen’s photographs and videos on its state website, without Allen’s permission or payment of any royalties, Allen sued for copyright infringement.
The Court ruled that the states are immune from such federal lawsuits, rejecting Allen’s arguments that the CRCA validly abrogated state sovereign immunity pursuant to either Article I of the Constitution or Section 5 of the Fourteenth Amendment. While not disputing that the CRCA contained unequivocal language abrogating the states’ immunity to copyright suits, the Court concluded that its 1999 decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank definitively foreclosed Allen’s arguments.
The Court first rejected Allen’s argument that the CRCA validly suspended state sovereign immunity pursuant to the Intellectual Property Clause of Article I, Section 8 of the Constitution, which empowers Congress to secure to authors and inventors the exclusive rights in their writings and discoveries. Florida Prepaid had previously held that Congress could not use its Article I power over patents to abrogate the states’ sovereign immunity. And if Congress could not abrogate for patents, the Court reasoned, it could not abrogate for copyrights, rendering the Article I Intellectual Property Clause a constitutionally insufficient basis for abrogating state sovereign immunity. Moreover, Allen’s failure to provide a “special justification” beyond simply a “belief” that Florida Prepaid was wrongly decided rendered him unable to overcome the force of stare decisis.
The Court also determined that the CRCA did not validly abrogate pursuant to Section 5 of the Fourteenth Amendment, which prohibits the states from “depriv[ing] any person of life, liberty, or property, without due process of law.” A congressional abrogation is valid pursuant to this clause only if the law passes a mean-end test, in which there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. The CRCA sought to further the Fourteenth Amendment prohibition on the states’ depriving persons of property without due process, but here—again—stare decisis controlled. Florida Prepaid had held that because Congress failed to identify a pattern of unconstitutional intentional patent infringements, the patent law “swept too far” in proportion to the problem. Given the nearly identical scope of the patent law at issue in Florida Prepaid and the CRCA, Allen could avoid a similar outcome only if the CRCA were based on a legislative record containing “materially stronger evidence of unconstitutional infringement.”
The legislative record before the Court, however, showed little evidence of intentional infringement by the states (as opposed to honest or innocent mistakes), nor did it contain any information about whether the states provided adequate remedies for any infringements. Thus, the Court concluded, the CRCA failed to strike a congruent-and-proportional balance and could not validly abrogate state sovereign immunity pursuant to Section 5 of the Fourteenth Amendment.
Importantly, the Court’s holding does not hold the states immune to copyright infringement suits. Although the Court held that the CRCA, as enacted, did not meet the standards necessary to abrogate state sovereign immunity, the Court acknowledged that it was within congressional power to craft a law that “can effectively stop States from behaving as copyright pirates” and “bring digital Blackbeards to justice.” Notably, the Court advised that:
- Although a merely negligent act does not deprive a person of due process, an infringement that is intentional, or at least reckless, might.
- Congress should create a legislative record “linking the scope of the abrogation” to the “prevention of the unconstitutional injury.”
- The legislative process would also have to consider the availability of state-law remedies for copyright infringement.
Whether Congress can or will act, however, remains to be seen. Justice Thomas’ concurring opinion—which doubts whether copyrights are properly considered property subject to the Fourteenth Amendment—indicates one potential hurdle. Moreover, Congress has yet to reenact the patent statute struck down 20 years ago in Florida Prepaid, suggesting that this issue is of low legislative priority. Until Congress acts, the states will retain their immunity from damages in copyright infringement suits.