Supreme Court: Statute Exposing States to Claims of Copyright Infringement Must Walk the Plank

By Daniel M. Staren and David G. Barker

Today a unanimous Supreme Court struck down the Copyright Remedy Clarification Act of 1990 (“CRCA”), which sought to expose States to copyright infringement suits. See 17 U.S.C. § 511(a). The Court’s decision in Allen v. Cooper affirmed a Fourth Circuit decision holding that neither Congress’s Article I powers nor Section 5 of the Fourteenth Amendment granted Congress constitutional authority to enact the CRCA.

In 1996, North Carolina hired Frederick Allen to document the State’s efforts to recover the shipwrecked remains of Queen Ann’s Revenge, the flagship vessel of pirate Edward Teach—Blackbeard. Allen registered copyrights in videos and photographs of the wreckage and sued North Carolina in 2003 for its unauthorized use of the same. North Carolina moved to dismiss the suit on the grounds of sovereign immunity, but the district court agreed with Allen that the CRCA allowed the claim to proceed. The Fourth Circuit reversed, reasoning that the Supreme Court’s decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), shows that Congress acted beyond its constitutional authority in enacting the CRCA. The Supreme Court granted certiorari.

The Court noted that, fundamentally, federal courts “generally may not hear a suit brought by any person against a non-consenting State.” But the Court explained two conditions that allow Congress to overcome this scheme: (1) “Congress must have enacted ‘unequivocal statutory language’ abrogating the States’ immunity from the suit,” and (2) “some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty.” The Court agreed with Allen that Congress intended to abrogate States’ immunity but disagreed that Congress had the constitutional authority to do so.

The Court acknowledged that Florida Prepaid “all but prewrote [its] decision.” In that case, the Court invalidated a statute that sought to abrogate a State’s sovereign immunity for patent infringement. As in Florida Prepaid, the Court similarly held in Allen that “Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity” for claims of copyright infringement.

In addition, while acknowledging that Section 5 of the Fourteenth Amendment could “authorize Congress to strip the States of immunity,” the Court held that the record before it did not support abrogation. Under Section 5 of the Fourteenth Amendment, congressional abrogation is valid if there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Analogous to the statute struck down in Florida Prepaid, the Court found minimal evidence of injury in the record supporting the CRCA, a statute that extended to every copyright infringement case against a State. However, the Court explained that a properly tailored statute could be valid, thus preventing States from behaving as “copyright pirates” and also bringing “digital Blackbeards to justice.”

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