SCT: States can Keep Infringing Copyright With Immunity/Impunity

By Dennis Crouch

This case is welcome news to state-employed teachers infringing copyrights like crazy as they post materials online. 

Allen v. Cooper (Supreme Court 2020)

Justice Kagan offered the US Supreme Court’s opinion siding with the State of North Carolina (Cooper) in a Copyright federalism question — holding that US Congress does not have the authority to abrogate State immunity from copyright infringement lawsuits.

The 11th Amendment (1795) provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In this case, copyright holder Rick Allen sued the State of North Carolina (Cooper is the Governor) for copyright infringement in Federal Court after the state willfully and deliberately copied his works.   The videos and photos at issue here are ones that Allen captured as part of the recovery and exploration of the Pirate Blackbeard’s downed ship Queen Anne’s Revenge.  The state used his materials for various educational purposes and Allen sued.

At first glance, the text of the 11th Amendment appears to make this an open-and-shut case — US courts have no judicial power over a State in this situation.  Note here though that Allen is actually a citizen of North Carolina and so the law doesn’t directly apply because he is not fit the set of “Citizens of another State.”

The 11th Amendment is the touchstone of state sovereign immunity because it expressly remarks upon the issue. However, in several decisions over the centuries, the Supreme Court has noted that the 11th Amendment is not the limit or the whole. See, Hans v. Louisiana, 134 U.S. 1 (1890) and Alden v. Maine, 527 U.S. 706 (1999) as examples.  In Alden, the Supreme Court explained that nothing in the rest of the U.S. Constitution generally empowers Congress to subject the States to private lawsuits in Federal Court.  Alden though was a 5-4 decision not cited here in Allen v. Cooper.  That fact, along with Justice Kagan as author reflect that the unanimous decision here is a compromise judgment.

The intellectual property clause is also found in the Constitution — giving Congress power “To promote the progress of science and useful arts” by granting “exclusive rights” to authors and inventors.  U.S. Const. Art. I, Sec. 8, Cl. 8 (1789).  It is not clear from the text whether this clause creates an exception to the states-not-being-sued principle.  To make it clear, in 1990 Congress passed the Copyright Remedy Clarification Act (CRCA) that expressly removed States sovereign immunity in copyright infringement cases.   Subsequently, in 1999 the Supreme Court decided a parallel case involving a parallel Remedy Clarification Act for patents. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). In Florida Prepaid, a 5-4 majority held that nothing in Article I (including the IP Clause) allowed Congress to abrogate state sovereign immunity.  The Court did explain that the 14th Amendment provides the mechanism for abrogating state sovereign immunity with the statement:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

14th Amendment, Section 5 (1868).  The 14th Amendment explains that no State may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 14th Amendment, Section 1.   Here, Allen contends that his Copyright is a Property Right enabled and promoted by the US Constitution and Congress. And, that it is a violation of the 14th amendment to deprive Allen of his property rights without due process.

In reviewing the claim, the Supreme Court extended the patent discussion in Florida Prepaid to cover copyright as well — holding that Article I does not grant Congress power to limit state sovereign immunity.  In the process, the court distinguished Central Va. Community College v. Katz, 546 U. S. 356 (2006), limiting  that case to the “unique history of the Bankruptcy Clause.”  In interpreting the 14th Amendment, the Supreme Court repeated prior holdings that – in most instances – Congress must “identify a pattern of unconstitutional” activity by the states sufficient to require abrogation of sovereign immunity.  Here, the “thin evidence” of widespread state infringement was insufficient to open the door to 14th Amendment protections.

The court offers a bone to Congress — explaining that the Supreme Court’s approach to State sovereign immunity has changed since CRCA passed.  Since the decision the court had not yet explained its test, “Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection.”  The court then notes that in the future Congress can likely create a “tailored statute” to “stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

In the end, the majority opinion explained

Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below.


The decision includes two additional opinions, both concurring in the judgment — agreeing that sovereign immunity protects the State in this case.

In his concurring opinion, Justice Thomas offers “two disagreements and one question open for resolution in a future case.”

  • Stare decisis: The court does not need “special justification” to overrule precedent.  Rather the Court is obligated to correct prior errors.
  • Opinion on Future Legislation: Justice Thomas argued that the Supreme Court has no role in advising Congress on “how it might exercise its legislative authority, nor give our blessing to hypothetical statutes or legislative records not at issue here.”
  • Are Copyrights Property: Justice Thomas’s big final question is “whether copyrights are property within the meaning of the 14th Amendment’s Due Process Clause.” According to Justice Thomas, that question “remains open.”  In his opinion, Justice Thomas recognized that the court has previously identified copyrights as a form of property – even for Due Process considerations.  But, those statements were effectively dicta or without substantial analysis.

Finally, Justice Breyer – joined by Justice Ginsberg – offered a concurring opinion.  Effectively, the pair would dissent on the merits, but now recognize that their view of limited State sovereignty “has not carried the day.”

4 thoughts on “SCT: States can Keep Infringing Copyright With Immunity/Impunity

    1. 2.1

      It appears that this decision is one that will need to be read several times in order to be properly digested.

  1. 1

    Given how publishers and various other scumbags in the copyright industries have conducted themselves for the past fifty years, states should be doing everything they can to shelter their citizens from copyright liability, in all cases. Then California can scream and yell and cry until it catches fire and falls into the ocean.

    1. 1.1

      I presume that your advice for States to take control (and do what they want) includes California.

      Did you mean that the copyright holders IN California (including Big Tech and Big Media) could “scream and yell and cry until [they catch] fire and fall_ into the ocean.”…?

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