Ahoy, Mateys! Earlier this week, in Allen v. Cooper, Case No. 18-877, 589 U.S. ___ (Mar. 23, 2020), the United States Supreme Court held that the Copyright Remedy Clarification Act of 1990, a federal statute stripping states of their sovereign immunity from copyright infringement suits, lacked a valid constitutional basis. Thus, states cannot be sued for copyright infringement.
The dread pirate Blackbeard ran his prize ship, Queen Anne’s Revenge, aground off the coast of North Carolina in 1718. Centuries later, North Carolina contracted with a marine salvage company to recover the shipwreck. That company contracted with Frederick Allen, a videographer, who took videos and photographs of the operation, which took more than a decade. Allen registered his claim to copyrights in those videos and photographs. North Carolina published and otherwise used some of those videos and photographs without Allen’s permission. Notwithstanding some efforts to parley, the parties were unable to resolve the matter, so Allen sued the state for
piracy copyright infringement.
North Carolina moved to dismiss the suit on the ground of sovereign immunity. Allen responded by arguing that a federal statute, the Copyright Remedy Clarification Act of 1990 (the “CRCA”) stripped states of their immunity from suit for copyright infringement. The district court agreed, but the U.S. Court of Appeals for the Fourth Circuit reversed, holding the CRCA invalid. The Supreme Court granted certiorari and affirmed the Fourth Circuit’s decision.
Generally, states are sovereign and immune from suit absent consent. Exceptions to this general rule occur when Congress, using unequivocal statutory language, abrogates the states’ immunity from suit pursuant to some constitutional authority. In the CRCA, it is undisputed that Congress abrogated states’ immunity from copyright infringement suits. The parties dispute whether Congress had constitutional authority to do so. Allen arrrgh-ued it did, either under Article I of the Constitution (regarding copyright protection) or Section 5 of the Fourteenth Amendment to the Constitution (which gives Congress the right to enforce the Due Process amendment). The Court disagreed with both arguments, as explained below.
Article I of the Constitution empowers Congress to promote the progress of science and the useful arts. This is the clause that allows Congress to grant copyrights and patents. Allen argued that Congress inherently had authority to subject states to suit for copyright infringement in order to secure the copyright holder’s exclusive rights. However, the Supreme Court had previously rejected this argument in the patent context.
In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), the Court held that Congress cannot rely on Article I to circumvent the limits of sovereign immunity imposed on federal jurisdiction in the context of patent infringement claims. The Court ruled that the same reasoning applies in the copyright context.
Allen’s second rationale for finding Congressional authority to abrogate states’ sovereign immunity was Section 5 of the Fourteenth Amendment. For an abrogation statute under this section to be upheld, it must be tailored to remedy or prevent conduct violating the Amendment’s prohibitions against depriving any person of life, liberty, or property. To determine whether a statute passes muster under Section 5 of the Fourteenth Amendment, the Court must assess whether there is congruence and proportionality between the injury and the means adopted to remedy that injury.
Copyright protection is a property right. As such, it may sometimes fall within the ambit of the Fourteenth Amendment’s protections. However, the Court determined that not all copyright infringement concerns are covered by the Amendment. To be covered by the Due Process Clause, the infringement must be intentional or at least reckless and the state must have failed to have offered an adequate remedy for the infringement.
The Court analogized to Florida Prepaid, and found the CRCA disproportionate to the abrogation of immunity. In Florida Prepaid, the Court determined that Congress had not found a pattern of unconstitutional patent infringement, had not focused on intentional or reckless conduct, and had not considered the availability of state remedies for patent infringement. Therefore, the Patent Remedy Act was overbroad.
The Court found similar deficiencies in the foundation for the CRCA. According to testimony heard by Congress prior to passing the CRCA, state infringement was not widespread and the states were generally respectful of the law. Legislative testimony underscored the desire to guard against sloppiness and honest mistakes and contained no information about state law remedies for copyright infringement. Because of these deficiencies, the CRCA, like the Patent Remedy Act before it, failed the congruence and proportionality test and was thus invalid.
However, the Court held out hope for copyright owners by noting that Congress could still pass a valid copyright abrogation law in the future and, in light of Supreme Court precedent that had been decided since passage of the CRCA, Congress would be in a better position to do so.
In sum, the Court affirmed the judgment of the US Court of Appeals for the Fourth Circuit holding the CRCA invalid, and holding states immune from copyright infringement suits. As a result of this decision, North Carolina managed to avoid walking the plank on Allen’s copyright infringement suit.