In Allen v. Cooper1, the Supreme Court held that the copyright clause in the U.S. Constitution did not authorize Congress to abrogate states’ Eleventh Amendment immunity from copyright infringement. In addition, Congress’s authority to enforce the Fourteenth Amendment’s due process clause did not authorize it to abrogate states’ Eleventh Amendment immunity from copyright infringement suits. The Court acknowledged that Congress might have the power to craft a limited statute abrogating a state’s immunity where the state’s copyright infringement was intentional or possibly reckless.
Justice Clarence Thomas concurred with the majority but disagreed with the majority’s reasoning that stare decisis dictated the ruling. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, also concurred with the majority but disagreed on the majority’s interpretation of prior cases.
By a unanimous vote, the justices ruled that North Carolina was shielded by state sovereign immunity from a lawsuit filed by Frederick Allen, a filmmaker who sued the state for infringing his copyright by using his footage of the wreck of Queen Anne’s Revenge, the flagship of the infamous pirate Blackbeard. Allen argued that the Copyright Remedy Clarification Act of 1990 (CRCA) abrogated North Carolina’s immunity under 17 U.S.C. § 511(a).
The Court disagreed, and struck down the CRCA, holding Congress lacked the constitutional power to abrogate state immunity under this statute. The Court initially noted:
The Court explained:
In this case, the Court reasoned, the statute was unconstitutional because it afforded a uniform or consistent remedy, as opposed to a specific or tailored response to unconstitutional conduct by states. The Court, however, provided the following remark:
Therefore, the Court held that Article I’s intellectual property clause could not authorize Congress to abrogate state sovereign immunity. In addition, Section 5 of the Fourteenth Amendment could not authorize Congress to abrogate state sovereign immunity because the CRCA statute was not narrowly tailored.
The Court’s ruling, Justice Elena Kagan wrote, should not be interpreted as prohibiting Congress from stopping “states from behaving as copyright pirates.” Keep in mind, however, that while states may currently be immune from copyright infringement, third parties that may be working for states are not immune from suit. In addition, in the event states abuse this immunity, according to the Court, Congress can enact more narrowly tailored laws to address specific types of state copyright violations.
Irah H. Donner
Dynamic Intellectual Property Lawyer possessing a proven track record as a trusted advisor to technology organizations and financial institutions, leveraging expertise in Legal Advisory, Program Execution, Technical & Business Analysis, Contract Negotiations, Strategy Alignment, and Risk Mitigation to support complex needs of major business entities and their technology/software innovations as in-house counsel.