On Monday March 23, 2020, the U.S. Supreme Court issued a unanimous ruling by Justice Elena Kagan in Allen v. Cooper, which held that the federal statute abrogating states’ sovereign immunity and permitting copyright holders to sue for infringement was unconstitutional. In reaching its decision, the Court cited its 1999 ruling, Florida Prepaid v. College Savings Bank, in which the Court ruled that Congress could not abrogate sovereign immunity for patent holders suing states for patent infringement. Extending the logic from Florida Prepaid, the Court concluded that Congress similarly could not abrogate sovereign immunity for copyright holders suing states for copyright infringement.
In Allen, a videographer, Frederick Allen, sued the state of North Carolina for copyright infringement because the state published without permission some of his copyrighted photos and video footage documenting the recovery of the ship belonging to the infamous pirate Blackbeard.
Sovereign immunity is a legal doctrine that immunizes the government from certain liability. In the U.S., sovereign immunity is rooted in the Constitution’s Eleventh Amendment and extends to the state and federal governments, as well as tribal governments. However, the doctrine of sovereign immunity is not absolute. States may not rely on sovereign immunity in certain scenarios where discrimination is claimed, if the suit is brought by the United States, or if the suit is brought by another state. Additionally, Congress has abrogated states’ immunity in certain tort claims, thereby permitting states to be sued for the negligence of the state’s government employees.
Pursuant to the provisions of the 1990 Copyright Remedy Clarification Act (CRCA), Congress provided copyright owners with the right to sue states for copyright infringement, an abrogation of state sovereign immunity. In prior cases considering the validity of the CRCA, appellate courts in the 1st, 2nd, 5th, 6th, 9th, and 11th Circuits ruled that the CRCA is unconstitutional. After the 4th Circuit Court of Appeals ruled against Allen and held that the CRCA is unconstitutional, the high court agreed to hear Allen’s case. Allen argued that the 4th Circuit erred and that notwithstanding the doctrine of sovereign immunity the CRCA is constitutional and affords him the opportunity to proceed with his infringement case against North Carolina.
Relying on the precedent of the Court’s 1999 ruling in Florida Prepaid, the Court ruled that the CRCA is unconstitutional. In Florida Prepaid, the Court ruled that a federal statute, the Patent Remedy Clarification Act (PRCA), which was nearly identical to the CRCA and permitted patent holders to pursue infringement actions against states, was unconstitutional. In that case, a patent holder had argued that Congress’s authority stemmed from either the Intellectual Property Clause in the U.S. Constitution’s Article I, which provides inventors and creators certain protections for patents and copyrights, or Section 5 of the Fourteenth Amendment, which authorizes Congress to enforce the Due Process Clause. The Florida Prepaid Court “defined the scope of unconstitutional patent infringement as intentional conduct for which there is no adequate state remedy.” Because Congress did not show a pattern of patent infringement when it enacted the PRCA, the Court concluded the PRCA went too far. In the absence of sufficient evidence to show widespread patent infringement by states, the Court concluded that Congress lacked authority to abrogate states’ sovereign immunity.
The Court in Allen relied heavily on the Florida Prepaid precedent. As Justice Kagan wrote, “Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity and it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both of those reasons, we affirm the judgment below.”
For Allen to have prevailed, he would have needed to establish special justification above and beyond the argument that the precedent of Florida Prepaid was wrong. The Court indicated that Allen only provided analysis of the various relevant clauses of the Constitution and its Amendments, which Allen claimed showed Florida Prepaid was incorrectly decided. The Court determined that such showing does not constitute sufficient special justification to overturn the precedential decision of Florida Prepaid.
In light of the ruling in Allen, states are immune from copyright infringement lawsuits brought by copyright owners. However, the Court noted that Congress could potentially pass a statute that could provide for abrogation of state sovereign immunity with respect to copyright infringement if such statute identifies violations of due process. Justice Kagan provided guidance that such statute would need to recognize the “importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries – and creating a legislative record to back up that connection.” In such circumstances, Congress could enact a “proportionate response” with a tailored statute to stop states from “behaving as copyright pirates.”