The Supreme Court has stricken a federal statute that abrogated a State’s immunity from copyright infringement lawsuits. The Copyright Remedy Clarification Act of 1990 (CRCA) provided that States “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. 17 U.S.C. § 511(a).
The statute also provided that States would be liable and subject to remedies “in the same manner and to the same extent as” a private party. The Supreme Court however held that Congress lacked the authority to strip States of their sovereign immunity, thus making the CRCA unconstitutional. See Allen v. Cooper, No. 18-877, 2020 WL 1325815 (US Mar. 23, 2020).
The case originated from a suit brought by a local videographer, Frederick Allen. The videographer was hired by a marine salvage company that discovered – and was contracted by the State of North Carolina to recover – the Queen Anne's Revenge, a French slave shipwreck that laid underwater, undisturbed for nearly 300 years in Beaufort, North Carolina. For more than ten years, Allan created a record of photographs and videos documenting the many efforts to salvage the shipwreck, the remains for which belong to the State of North Carolina pursuant to local and federal laws. Allan obtained copyright registrations for all of his visual works.
The State uploaded some of the works to its website and newsletter, thus prompting Allan to bring suit alleging copyright infringement, among other claims, and seeking monetary damages. The District Court denied the State’s motion to dismiss on the ground of sovereign immunity, allowing the declaratory judgment and infringement claims to proceed. However, the United States Court of Appeals for the Fourth Circuit, reversed and remanded, holding the CRCA invalid. The Supreme Court granted certiorari, affirming the Circuit Court’s decision.
According to the Supreme Court, a federal court can only entertain a suit against a non-consenting state on two conditions:
- “Congress must have enacted ‘unequivocal statutory language’ abrogating the States' immunity from the suit[,]” and
- “[S]ome constitutional provision must allow Congress to have thus encroached on the States' sovereignty. Not even the most crystalline abrogation can take effect unless it is ‘a valid exercise of constitutional authority.”
Here, it was undisputed that Congress intended to abrogate the States’ immunity and that the language in the statute reflected this. Indeed, the CRCA provided that States “shall not be immune” from copyright infringement actions in federal courts and that States would be liable and subject to remedies “in the same manner and to the same extent as” a private party. However, the Court concluded that Congress did not have the authority to adopt this language, which effectively removes a States’ immunity. Theories attempting to support such authorization under Article I of the Constitution, fail, as do those under Section 5 of the Fourteenth Amendment, the Court held.
Article I of the Constitution undoubtedly authorizes Congress 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.” In other words, Congress has authority to grant a copyright, and, in turn, the created rights impose a duty on third-parties to not infringe. But, this power does not unilaterally authorize Congress to strip States of their sovereign immunity. The power to secure and protect an intellectual property owner’s “exclusive right” stops when in the face of sovereign immunity, the Court held. This is consistent with other cases decided by the Court, and the Plaintiff failed to provide a special justification, “over and above the belief that the precedent was wrongly decided,” the Court explained.
The Court additionally held that Section 5 of the Fourteenth Amendment similarly does not authorize Congress to strip States of their sovereign immunity in copyright infringement lawsuits. Congress indisputably has authority to adopt legislation pursuant to Section 5 of the Fourteenth Amendment stripping a State of its immunity – and thus subjecting it to suit in federal court – where the State has deprived a person of “life, liberty, or property, without due process of law.” However, for such a statute to be appropriate under Section 5, it must be “tailored to ‘remedy or prevent’ conduct infringing the Fourteenth Amendment's substantive prohibitions.” Here, the Court concluded that the CPCA was not appropriately tailored, and that “a merely negligent act does not ‘deprive’ a person of property” such that the action comes within the reach of the Due Process Clause. The action must be intentional, or at least reckless, and the State must fail to offer an adequate remedy in order to violate the Clause.
Despite its opinion, the Court made clear that its conclusion does not prevent Congress from later passing copyright abrogation laws. The scope of the abrogation, however, must be linked to the redress or prevention of the unconstitutional injuries, and the legislative record must support the same. The statute cannot provide a general, uniform remedy for copyright infringement, as the CRCA did. It must provide for a proportionate response, which indeed could “effectively stop States from behaving as copyright pirates.”