In Allen v. Cooper, No. 18-877, slip op. (U.S. March 23, 2020), the Supreme Court held that a 1990 statute permitting copyright holders to sue States for infringement was unconstitutional under the Eleventh Amendment and sovereign immunity.
Allen arises out of copyrighted works documenting the salvage of famed 18th Century pirate Blackbeard’s ship, Queen Anne’s Revenge. Three hundred years after Blackbeard cruised the Caribbean plundering merchant ships, his legacy has given rise to allegations of a different sort of piracy: copyright infringement. In 1996, a marine salvage company, Intersal, Inc., discovered the wreckage of the Queen Anne’s Revenge. In the course of the recovery operation, Intersal hired a videographer, Frederick Allen, to document the proceedings. Several years later, the State of North Carolina, which owns the fruits of the salvage operation, copied and distributed some of Allen’s copyrighted works on its website and elsewhere.
Allen sued North Carolina in federal district court, and the State moved to dismiss on sovereign immunity grounds. The district court rejected the motion based on the Copyright Remedy Clarification Act of 1990 (CRCA or Act), which purported to remove States’ sovereign immunity in copyright cases. The Fourth Circuit reversed based on Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), in which the Supreme Court held that a similar patent statute lacked a valid constitutional basis. The Supreme Court granted certiorari to determine whether a State may be sued for copyright infringement or whether Florida Prepaid foreclosed Allen’s claims. The Supreme Court had little trouble finding that the CRCA did not pass constitutional muster and that the threshold for removing sovereign immunity under the Eleventh Amendment had not been reached.
In Florida Prepaid, the Court acknowledged that under certain circumstances, the Fourteenth Amendment can empower Congress to abrogate State immunity to lawsuits brought in federal court by citizens of other States or by foreign citizens. For abrogation to be valid, Congress must clearly indicate its intention to abrogate immunity and tailor its action to “remedy or prevent” State conduct infringing the Fourteenth Amendment’s substantive prohibitions. City of Boerne v. Flores, 521 U. S. 507, 519 (1997). In Florida Prepaid, the Supreme Court had found that the Patent Remedy Act, which sought to remove State immunity in patent suits, failed to identify a pattern of unconstitutional patent infringement warranting abrogation. Similarly here, the Court found the legislative record utterly lacking in support for a finding that State infringement of copyrights was so widespread as to warrant Congress to allow States to be sued by copyright holders.
While conduct by States that runs afoul of copyright interests appears rare, the consequences of Allen are somewhat uncertain. Will some States be emboldened to ignore copyright interests when they believe it is in their interest? Would state law remedies, such as common law copyright, be sufficient to provide a plaintiff with an effective remedy? And if Congress were to go back to the drawing board and develop a legislative record showing the necessity of such a law to “effectively stop States from behaving as copyright pirates,” would it survive Court scrutiny? The only certain impact of Allen for copyright owners is that significant barriers to enforcement exist where the infringer is a State.