It’s official: states cannot be held liable for copyright infringement, as long as they don’t abuse the privilege.
That’s the decision handed down by the Supreme Court last week in Allen v. Cooper, a lawsuit brought by underwater videographer Frederick Allen, who sued North Carolina for using his footage without permission.
We’ve written about this case before. Allen took underwater photos and videos of the wreck of Queen Anne’s Revenge, Blackbeard’s famed pirate ship, after it was discovered off North Carolina in 1996. In an effort to promote tourism, the state published unauthorized copies of Allen’s photos and videos. Allen sued for copyright infringement.
North Carolina defended itself on the grounds that the Eleventh Amendment confers broad sovereign immunity on states, thereby protecting states and state officials from being sued in federal court. In response, Allen cited the Copyright Remedy Clarification Act (CRCA), a federal statute enacted in 1990 that purported to remove the state sovereignty bar if the cause of action was copyright infringement. Unfortunately for Allen, CRCA had already been struck down as unconstitutional by several lower courts, on the grounds that Congress essentially amended the Constitution, which it can’t do by merely passing a bill. Allen petitioned the Supreme Court, arguing that it should be the final arbiter of whether a statute was constitutional, not the lower federal courts.
The issue was thus whether the CRCA unconstitutionally restricted the scope of the Eleventh Amendment. The answer, it turns out, was a pretty easy one: yes.
In its unanimous opinion, the Court explained that in many ways, its decision had already been made for it, citing Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999). In that case, the Court construed a nearly identical federal statute that did for patent suits what the CRCA did for copyright suits: abrogate state sovereign immunity from patent infringement claims. The Court in Florida Prepaid held that while the Fourteenth Amendment permits Congress to enact “appropriate legislation” to protect parties from having their property taken without due process, this does not mean Congress can restrict state sovereignty on a whim––it must be able to show a consistent pattern of infringing activity to justify any encroachment on state sovereignty. In Florida Prepaid, that showing just wasn’t there, and the Court struck down the statute.
The same analysis played out in Allen. Only a dozen examples of state copyright infringement could be unearthed by the Copyright Office, which the Court said was simply not enough to justify Congressional intrusion into state sovereignty. As Justice Kagan put it, “[t]his is not. . . the stuff from which [such] legislation arises.” As a result, the CRCA is now officially kaput.
Now, you may be wondering if authors have any recourse against state infringement of their works, and the answer is no––unless things really gets out of hand.
If that strikes you as unfair, you’re not alone. During oral arguments in Allen, Justice Ginsburg opined that there was “something unseemly” about allowing states to own and enforce copyrights while simultaneously allowing them to infringe others with impunity. Justice Breyer similarly proposed a doomsday scenario in which a state could conceivably start selling pirated films, and then watch as “several billion dollars flows into the Treasury.”
Despite these concerns, Justices Ginsburg and Breyer sided with the majority, on the grounds that the Constitution would probably tolerate some reasonable restrictions on its grant of state sovereignty if abused to such a degree. Or to use a simpler analogy: the kid who crashes the family car doesn’t get to drive it anymore.