The Supreme Court of the United States issued a unanimous decision invalidating the Copyright Remedy Clarification Act (CRCA), a 1990 statute intended to provide copyright owners with the power to sue a US state government for infringement, and held that states cannot be sued for copyright infringement. Allen v. Cooper, Case No. 18-877 (Supr. Ct. Mar. 23, 2020) (Kagan, Justice) (Thomas, Justice, concurring) (Breyer and Ginsburg, Justices, concurring).
In 1996, marine salvage company Intersal discovered the wreck of the Queen Anne’s Revenge, the pirate ship of the infamous Blackbeard. Intersal was hired to recover the wreck by the state of North Carolina, which owned of the shipwreck. Intersal hired local videographer Frederick Allen to document the process, and Allen registered copyrights in a decade’s worth of videos and photos of the wreckage recovery.
Allen first objected to the state of North Carolina’s use of his copyrighted content in 2013 after he discovered the state was using his footage and photos for tourism and other marketing campaigns. The parties settled an initial dispute for $15,000, but wound up in federal district court shortly thereafter when Allen identified ongoing instances of infringement by the state.
The district court sided with Allen in his claim that the CRCA abrogated the states’ sovereign immunity from copyright lawsuits, and declined North Carolina’s motion to dismiss Allen’s lawsuit on grounds of such sovereign immunity. On appeal, however, the US Court of Appeals for the Fourth Circuit reversed, citing the Supreme Court’s 1999 precedent under Florida Prepaid v. College Savings Bank, which struck down the Patent Remedy Act, a federal statute similar to the CRCA that allowed for patent infringement lawsuits against states (IP Update, Vol. 21, No. 8). The Supreme Court granted certiorari (IP Update, Vol. 22, No. 6).
The Supreme Court’s Opinion
Justice Kagan opened with an explanation of sovereign immunity and the exceptions thereto, noting that the Supreme Court has permitted a federal court to sustain a suit against a nonconsenting state only if (1) Congress has enacted “unequivocal statutory language” abrogating the states’ immunity from a suit, and (2) some constitutional provision allows Congress to have so intruded on the states’ sovereignty.
The CRCA, Kagan explained, used clear language to abrogate the states’ immunity from copyright infringement suits. Accordingly, the question at issue was whether Congress actually had the constitutional authority to allow for such abrogation of immunity. The Court looked to its decision in Florida Prepaid, found that it foreclosed each of Allen’s arguments and confirmed.
Article I Grant of Power to Protect Intellectual Property
In his support of the CRCA, Allen argued that Congress’s authority to abrogate sovereign immunity from copyright lawsuits comes from Article I of the constitution, which allows Congress to grant patents and copyrights for the purpose of promoting “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.” Allen contended that this is an adequate basis for Congress to secure an author’s exclusive rights, and allows for abrogation of sovereign immunity over copyright lawsuits.
The Supreme Court quickly dismissed the Article I approach, however, and pointed to Florida Prepaid and supporting precedent Seminole Tribe, which invalidated the Patent Remedy Act and held that the power to secure an intellectual property owner’s exclusive rights under Article I “stops when it runs into sovereign immunity.”
Section 5 of the 14th Amendment
Allen also relied on Section 5 of the 14th Amendment for support of the CRCA, pointing to its grant of authority to Congress to strip the states of immunity. On this issue, the Supreme Court explained that a Section 5 abrogation must be tailored to “remedy or prevent” conduct infringing the 14th Amendment’s Section 1 substantive prohibitions. In other words, congressional abrogation under Section 5 must be sufficiently connected to violations of due process or equal protection. The Court articulated this as a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”
The Supreme Court acknowledged that the 14th Amendment might view copyright infringement as a potential deprivation of a property right, but it also found that deprivation of such a right under the 14th Amendment would require reckless or intentional infringement. The Court again looked to Florida Prepaid, which invalidated the Patent Remedy Act after finding no identified pattern of unconstitutional patent infringement by the states. Similarly, the Court found abrogation under the CRCA to be disproportional to any existing due process violation, and thus disconnected from a right under Section 1 of the 14th Amendment.
Justice for Future “Digital Blackbeards”
Before affirming the Fourth Circuit under the Florida Prepaid framework, Kagan made it clear that Congress may very well pass a valid copyright abrogation law in the future that is properly tailored to the “congruence and proportionality” test “[e]ven while respecting constitutional limits.” As Kagan noted, “[Congress] can bring digital Blackbeards to justice.”
Justice Thomas and Justice Breyer (joined by Justice Ginsburg) issued concurring opinions with respect to the ultimate judgment, while disagreeing with certain aspects of the majority opinion.
Justice Thomas voiced skepticism as to whether Congress could in fact pass constitutionally compliant abrogation legislation. He also explained that, in the context of the present case, he would not decide whether “copyrights are property within the original meaning of the Fourteenth Amendment’s Due Process Clause.”
Justice Breyer concurred that under the Supreme Court’s Florida Prepaid decision, the judgment here is correct, but voiced disagreement with the notion that “[t]o subject nonconsenting States to private suits for copyright or patent infringement . . . Congress must endeavor to pass a more “tailored statute” than the one before us, relying not on the Intellectual Property Clause, but on §5 of the Fourteenth Amendment.”