Last week, a unanimous U.S. Supreme Court ruled in Allen v. Cooper, No. 18-877 (Mar. 23, 2020), that sovereign immunity bars lawsuits against states for copyright infringement. The Plaintiff, Allen, had been hired to film the salvage operation of a famous shipwreck—the Queen Anne’s Revenge. The legendary pirate Blackbeard sailed the Queen Anne’s Revenge until it hit a sandbar and sank off the coast of North Carolina in 1718. After it was discovered, the salvage operations began. Allen obtained federal copyright registrations on his salvage film. Without his permission, the state of North Carolina used Allen’s film on its website. Allen sued for infringement alleging North Carolina willfully and deliberately “pirated” his copyrighted works.
The predominant question before the Supreme Court was one of state sovereign immunity under the 11th Amendment. North Carolina moved to dismiss, asserting it was immune from suit. Allen countered that the Copyright Remedy Clarification Act (CRCA) of 1990 removed state sovereign immunity in copyright cases. Specifically, Allen argued, Congress had enacted the CRCA in 1990 to abrogate state sovereignty and allow citizens to sue a state for copyright infringement.
On review, the Supreme Court struck down the CRCA as unconstitutional. Writing for the Court, Justice Elena Kagan explained “precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity . . . [and] that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here.”
While the CRCA has been vitiated, dicta suggests that nothing bars Congress from attempting to pass a new version of the law. The Court stated: “Going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. . . . That kind of tailored statute can effectively stop states from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”