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Copyright Pirates: The Abrogation of State Sovereignty

By Christian Karpinski & Emily Mosnick , J.D. Candidates 2021

Copyright law provides avenues of protection for authors and creators to sue parties that have pirated their works. But does Copyright law allow a creator to seek redress from all parties; let’s say…a state? Until recently, there existed uncertainty as to whether a right holder could seek redress against a state that infringed their copyright because of state sovereign immunity. On March 23, 2020, the United States Supreme Court unanimously held in Allen v. Cooper[1] that states cannot be sued for copyright infringement under principles of sovereign immunity established by the Eleventh Amendment to the Constitution.

In 1996, a marine salvage company, Intersal, Inc., discovered the wreckage of the pirate Blackbeard’s ship, the Queen Anne’s Revenge, off the North Carolina coast. North Carolina, the shipwreck’s legal owner, contracted with Intersal to conduct recovery operations. Intersal, in turn, hired plaintiff videographer Frederick Allen, to document the efforts. Allen recorded videos and took photos of the recovery efforts for more than a decade. He registered copyrights in all the works. When North Carolina published several of Allen’s videos and photos online, in violation of a prior settlement agreement arising out of the same conduct, Allen sued the State for copyright infringement. North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity under the Eleventh Amendment, stating, “[t]he 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.”[2] Allen countered that the Copyright Remedy Clarification Act of 1990 (CRCA)  properly abrogated states’ sovereign immunity in copyright infringement cases. However, the Supreme Court unanimously decided that Congress lacked authority to abrogate a state’s immunity for copyright infringement through the CRCA.

The key question was whether Congress had the authority to abrogate a state’s immunity against copyright infringement actions. The Court has permitted a federal court to entertain a suit against a nonconsenting state when two conditions are met. First, Congress must have enacted “unequivocal statutory language” abrogating a states’ immunity from the lawsuit. Second, some constitutional provision must allow Congress to encroach on a states’ sovereignty. Not even the most crystalline abrogation can take effect unless it is a valid exercise of constitutional authority. 

Congress has the power under Article I “[t]o 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.”[3] Allen contended that Congress’s authority to abrogate sovereign immunity falls well within the Article I grant of power to protect intellectual property rights. The Supreme Court previously rejected this argument in Florida Prepaid[4], which evaluated sovereign immunity in the context of the Patent Remedy Act (PRA), a “basically identical” statute to the CRCA.[5] Although the plaintiff argued a clause-by-clause approach that, when met with stare decisis, ultimately failed. To reverse a decision, the Court demanded a “special justification,” over and above the belief “that the precedent was wrongly decided.”[6] Allen offered no such justification.

In addition, Section 5 of the Fourteenth Amendment, unlike most of Article I, authorizes Congress to strip the states of immunity. The first section of the Fourteenth Amendment imposes prohibitions on the states, including “that none may ‘deprive any person of life, liberty, or property, without due process of law.’”[7] Section 5 then gives Congress the “power to enforce, by appropriate legislation,”[8] those limitations on states’ authority. To decide whether a law passes muster, the Court framed a type of means-end test. For Congress’s action to fall within its Section 5 authority, the Court said, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”[9]

In conducting its analysis in light of Florida Prepaid as critical precedent, the Court raised one question: “[w]hen does the Fourteenth Amendment care about copyright infringement?” While acknowledging that a copyright is a property interest that should not be deprived without due process, the Court asserted that the Fourteenth Amendment does not provide a remedy for “a merely negligent act” that deprives a person of property. [10] The infringement must be intentional or, at the very least, reckless to come within the purview of the Due Process Clause.[11] In concluding its analysis, the Court found the legislative record behind the CRCA insufficient to cure “the problems identified in Florida Prepaid.[12] When passing the PRA, Congress presented a history of patent infringement committed by state actors; concluding that there was no evidence that any instance of infringement by States crossed constitutional lines.[13] Similarly, the Court here found the evidence of states infringing copyrights to be scarcely more impressive than what the Court saw in Florida Prepaid. [14] The Court found very little historical evidence to support Congress’s stated motives, undermining the justification for the CRCA’s passage, and invalidating Congress’s authority under Section 5 of the Fourteenth Amendment.[15]

While this holding may seem like a setback for copyright holders, it does not completely close the door on Congress passing a valid abrogation law in the future. The opinion in Allen v. Cooper shows Congress that Article I’s Intellectual Property Clause cannot provide the basis for an abrogation of sovereign immunity. Instead, Congress should link the scope of its abrogation to the redress or prevention of unconstitutional injuries and create a robust legislative record to bolster that connection.

[1] 140 S. Ct. 994 (2020).

[2] U.S. Const. amend. XI.

[3] U.S. Const. art. I, §8, cl. 8.

[4] See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647–48 (1999) (Abrogation, under Patent Remedy Act (35 USCS 271(h), 296(a)), of states’ sovereign immunity from patent infringement suits held not to be valid legislation enacted to enforce the Fourteenth Amendment’s due process clause).

[5] Allen v. Cooper, 140 S. Ct. 994, 998 (2020).

[6] Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014).

[7] U.S. Const. amend. XIV, § 1.

[8] U.S. Const. amend. XIV, § 5.

[9] City of Boerne v. Flores, 521 U.S. 507, 520 (1997).

[10] Allen, 140 S. Ct. at 1004.

[11] Id.

[12] Id. at 1006.

[13] Id.

[14] Id.

[15] Id. at 1007.