Written by Bradley J. Mullins and Adé T.W. Jackson

On Monday, the U.S. Supreme Court ruled that a provision of the Copyright Act that allows for lawsuits against state governments for copyright infringement is unconstitutional.  The justices were considering Allen, et al. v. Cooper, et al., Case No. 18-877 (Mar. 23, 2020), a case where North Carolina was being sued by a filmmaker for using his videos and photos of the wreck of Queen Anne’s Revenge — the flagship of the pirate Blackbeard.  The justices unanimously ruled that North Carolina was shielded from the lawsuit by state sovereign immunity.

Although the Eleventh Amendment gives states broad sovereign immunity against such lawsuits, the plaintiff relied on the Copyright Remedy Clarification Act (CRCA) — a statue enacted by Congress in 1990 expressly to permit infringement claims against the States.  However, Monday’s ruling invalidates the statute, with the justices determining that Congress lacked the constitutional authority required to abrogate state sovereign immunity in this way.

The two main issues in the case related to Article I authority and the Fourteenth Amendment.  The plaintiff contended that Congress had authority to abrogate state sovereign immunity by the CRCA as a result of Article I’s Intellectual Property Clause (which empowers Congress to provide copyright protection), and Section 5 of the Fourteenth Amendment (which authorizes Congress to enforce the commands of the Due Process Clause).  However, the Court determined that neither contention could succeed.

Writing for the Court, Justice Elana Kagan cited Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, as precedent that “all but prewrote [the Court’s] decision today.”  In that prior ruling, the Supreme Court struck down a similar patent statute in part because that statue had not been based on evidence of sufficient patent infringement by states to constitute an unconstitutional taking under the Fourteenth Amendment.  In Allen, the Court similarly found that there was insufficient evidence of widespread copyright infringement by states to justify the CRCA.

Narrowly interpreted, Monday’s ruling means that the CRCA cannot strip the States of their sovereign immunity from copyright suits.  However, the Court indicated that Congress is not barred from attempting to pass a new version of the statute in the future.  Consequently, a broad interpretation of this ruling may justify Congress tailoring a novel statute that abrogates state sovereign immunity to copyright infringement claims.  This means additional evidence may justify Congress enacting such a statute in the future as a proportionate response to discourage States from acting as “copyright pirates” or digital Blackbeards. There may also be other claims available against states under other statutes or legal theories.