On March 23, the Supreme Court unloaded its cannons on the Copyright Clarification Act of 1990 (CRCA), holding in Allen v. Cooper, No. 18-877, 589 U.S. ___ (2020), that Congress lacked authority to abrogate states' immunity from copyright infringement suits. The unanimous decision found that the Court's previous holding in a case rejecting the sovereign immunity abrogation clause in the nearly identical Patent Remedy Act, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) ("Florida Prepaid"), compelled a similar result here. As a result, states are now effectively immune from copyright infringement actions unless and until Congress acts to create a new law permitting abrogation of sovereign immunity in this context.
In 1996, a marine salvage company discovered the centuries-old wreck of the Queen Anne's Revenge, the 1717-18 flagship belonging to Edward Teach, better known as the pirate Blackbeard, off the coast of North Carolina. The lengthy salvage process was filmed and photographed by Frederick Allen, who registered his works with the Copyright Office. The state of North Carolina then used some of his works online and in print before taking them down and settling with him for $15,000. When he requested the state take his registered works down a second time, the North Carolina legislature passed "Blackbeard's Law," which declared that all documentation of shipwrecks would henceforth be considered public record. Allen challenged the law in court in the Eastern District of North Carolina, seeking to hold the state monetarily liable under the CRCA. The CRCA explicitly abrogated sovereign immunity, placing states on the same footing as private parties for purposes of copyright infringement. North Carolina moved to dismiss on the basis of sovereign immunity and lost, before winning the argument at the Fourth Circuit on interlocutory appeal on the basis that Florida Prepaid was controlling precedent and required that sovereign immunity prevail. The Supreme Court affirmed this decision.
The opinion of the Court, written by Justice Kagan, explained that sovereign immunity may be abrogated if statutory language abrogating it is unequivocal and if some constitutional provision gives Congress the power to do so. The CRCA clearly called for an abrogation of sovereign immunity, including in its text that a state "shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for copyright infringement. 17 U.S.C. § 511(a). Therefore, the question entertained by the Court distilled to whether there was justification in the Constitution for CRCA to abrogate sovereign immunity, and if the evidence of that was sufficient to override the Court's on-point decision in Florida Prepaid.
Allen advanced two potential sources of congressional authority: the Intellectual Property Clause of Article I and Section 5 of the Fourteenth Amendment. Justice Kagan explained that Florida Prepaid explicitly found the Intellectual Property Clause to be insufficient grounds to abrogate sovereign immunity and that, under stare decisis, the facts here did not reach the "special justification" necessary to overrule existing precedent. Furthermore, the due process clause of the Fourteenth Amendment could not give Congress authority for this law because there was simply not enough evidence that states were routinely and intentionally committing acts of copyright infringement to merit such a sweeping waiver of immunity. Here, too, there was not enough compelling evidence to justify overturning the Court's Florida Prepaid decision.
Kagan concluded the opinion with a less-than-subtle hint to Congress: this "conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future…. That kind of tailored statute can effectively stop states from behaving as copyright pirates." 589 U.S. at *16.
There were also two concurrences, one by Justice Thomas and one by Justice Breyer. Justice Thomas disagreed with the majority's heavy-handed messaging approach to Congress regarding the creation of a new statute and disagreed with the standard for stare decisis invoked by Justice Kagan's opinion. He also indicated that he "believe[s] the question whether copyrights are property within the Fourteenth Amendment's Due Process Clause remains open" and would welcome a new case to entertain that question. Id. at *2 (Thomas, J. concurring). Justice Breyer stated in his concurrence that he also disagreed with the holding in Florida Prepaid and other precedent cited in Justice Kagan's opinion, but felt that the decision properly deferred to that erroneous holding. Id. at *2 (Breyer, J. concurring).
The Supreme Court's finding that CRCA improperly abrogated state sovereign immunity effectively eliminates copyright infringement actions against states. While the Court determined that there was not currently widespread infringement that could implicate the Due Process Clause, this decision may in fact encourage such widespread infringement. With sovereign immunity in place for states, one can imagine the textbooks, software, music, movies, photographs, and other creative rights that may now be used by states without license and without repercussion. Furthermore, at least under existing sovereignty law, this would extend to state agencies and instrumentalities acting as "an arm of the state." Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997).
Congress is rather preoccupied at the moment with COVID-19, but perhaps in due time if there does prove to be mass infringement resulting from this decision, Congress will take note of Justice Kagan's suggestion and pass a new law to prevent future state looting of copyrighted works.