On March 23, 2020, the U.S. Supreme Court decided Allen v. Cooper, No. 18-877, holding that the Copyright Remedy Clarification Act of 1990 (CRCA) lacks a valid constitutional basis to strip the states of their sovereign immunity from copyright-infringement lawsuits.
For over a decade, videographer Frederick Allen documented the salvage of the Queen Anne’s Revenge, the lost ship of the notorious pirate Blackbeard. Although Allen registered copyrights on his work, the state of North Carolina (where the ship was found) published some of his videos and photos. In 2013, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But later, it continued to use materials outside the settlement. Allen then sued for copyright infringement and money damages. North Carolina moved to dismiss on the ground of sovereign immunity. The district court denied the state’s motion to dismiss, and interlocutory appeal was granted. The U.S. Court of Appeals for the Fourth Circuit reversed, holding North Carolina was protected by sovereign immunity.
The Court affirmed the Fourth Circuit. A federal court can only entertain a suit against a nonconsenting state on two conditions, the Court held:
- “Congress must have enacted ‘unequivocal statutory language’ abrogating the States’ immunity.”
- “Some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty.”
In this case, Congress’ language was clear, so only the second condition was at issue. Allen contended that Article I of the Constitution (providing copyright protection) and Section 5 of the Fourteenth Amendment (authorizing Congress to “enforce” the Due Process Clause) satisfied the second condition. The Court rejected both contentions, relying heavily on its previous decision in Florida Prepaid, in which it had rejected Congress’ attempt to abolish states’ sovereign immunity in the setting of patent-infringement suits.
Regarding Article I, the Court held that its previous decision established that “the power to ‘secur[e]’ an intellectual property owner’s ‘exclusive right’ under Article I stops when it runs into sovereign immunity.” Regarding Section 5 of the Fourteenth Amendment, the Court noted that laws passed under Section 5 require a means-ends test, where the law must have “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Again relying on Florida Prepaid, the Court held that the legislative record for the CRCA showed few examples of state infringement of copyright law, and even fewer that were arguably intentional infringement, which did not satisfy the Fourteenth Amendment’s “congruence and proportionality test” for exposing states to full liability. Congress could, the Court noted, pass a valid copyright abrogation law in the future if it developed a legislative record showing that such a law was necessary to “effectively stop States from behaving as copyright pirates.”
Justice Kagan delivered the opinion of the Court, in which Chief Justice Roberts and Justices Alito, Sotomayor, Gorsuch, and Kavanaugh joined. Justice Thomas joined the Court’s opinion except for the final paragraph in Part II-A and the final paragraph in Part II-B. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed an opinion concurring in the judgment, in which Justice Ginsburg joined.