On Monday, March 23, in the case of Allen v. Cooper, No. 18-877, the Supreme Court held that states and state entities cannot be sued for copyright infringement because the federal statute that purported to abrogate state sovereign immunity in copyright cases, 17 U.S.C. § 511(a), exceeded Congress' constitutional authority. The result was not surprising, in light of earlier Supreme Court precedents and the consistent decisions of lower courts. While the Court effectively invited Congress to enact a new statute that properly abrogates state sovereign immunity from copyright cases, critics argue that the decision leaves copyright owners without an effective remedy in an environment where infringement by state entities is on the rise.
The case arose from videographer Frederick Allen's claims that the state of North Carolina used his copyrighted videos and images of the wreck of the pirate Blackbeard's ship, Queen Anne's Revenge, without his permission. The Supreme Court ruled that Allen's copyright infringement lawsuit was barred by the doctrine of sovereign immunity. Although Congress purported to abrogate state sovereign immunity when it passed the Copyright Remedy Clarification of Act of 1990 (CRCA), the Court held that it lacked a constitutional basis for doing so.
Allen had argued that Congress had two constitutional bases for abrogating state sovereign immunity from copyright litigation. First, he asserted that the power to abrogate flows from Article 1, Section 8 of the Constitution, which grants Congress the right to "promote 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." Alternatively, Allen argued that the abrogation was proper under Section 5 of the Fourteenth Amendment, which empowers Congress to enforce limitations on the state's ability to "deprive any person of . . . property, without due process of law."
The Supreme Court rejected both arguments. Writing for the majority, Justice Kagan explained that in Seminole Tribe v. Florida, 517 U. S. 44 (1996), the Court had ruled that Article 1 of the Constitution could not "be used to circumvent the limits sovereign immunity places upon federal jurisdiction." While it subsequently recognized an exception to that broad prohibition in the context of bankruptcy litigation (in Central Virginia Community College v. Katz, 546 U. S. 356, 359 (2006)), that exception, Justice Kagan wrote, was unique to the bankruptcy context. The Court went on to hold that the purported abrogation of state sovereign immunity was not a proper exercise of Congress' Fourteenth Amendment enforcement powers because it was not "congruen[t] and proportional" to the injury that Congress sought to prevent (i.e., copyright infringement by the states). It specifically noted that the record before Congress at the time it passed the CRCA did not include concrete evidence of widespread intentional copyright infringement by states. Accordingly, all nine justices agreed that the Court's decision in Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999)—which held that neither Article 1, Section 8 nor Section 5 of the Fourteenth Amendment empowered Congress to enact an analogous statute abrogating state sovereign immunity from patent claims—compelled the same conclusion with respect to Congress' authority to abrogate state sovereign immunity from copyright claims.
Monday's decision does not prevent copyright owners from pursuing claims for injunctive relief against state officials under Ex Parte Young, 209 U.S. 123 (1908), but critics contend that injunctive relief is insufficient. It cannot compensate for past misuse of copyrighted materials or unauthorized uses that sap protected content of its value. Moreover, without the ability to recover monetary relief, including attorneys' fees and costs, litigation expenses may make it impossible for many plaintiffs to afford to enforce their copyrights against state entities.
By contrast, those supporting the state's position have noted that claims for money damages are not the only incentives for states to respect copyright law. To the contrary, they note that state universities, schools, hospitals and other public entities are accountable to elected state officials, who do not want to be associated with repeated, intentional infringement. Similarly, they note that state universities, in particular, are built on ethical cultures that condemn copyright infringement and also are creators and authors themselves and therefore support respect for copyright. They further contend that state actors know that engaging in large scale copyright infringement could hurt their reputations in the marketplace and ability to develop relationships with important business partners. For these reasons, they conclude there is no record of state entities engaging in widespread intentional infringement, of the sort that would make abrogation of sovereign immunity an appropriate response.
The Supreme Court sounded a similar note when it indicated that a more limited abrogation of state sovereign immunity might pass constitutional muster in the future, if it were supported by a better-developed congressional record of repeated or intentional copyright infringement by state entities. Of course, creating such a record will be no simple task in an environment where states are immune from copyright claims. Moreover, given the slow pace of congressional action on copyright issues, the passage of remedial legislation may be a long time coming.
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