What’s yours is mine: Allen v. Cooper

On June 3, 2019 the United States Supreme Court [hereinafter ‘the Court’] granted a writ of certiorari in Frederick L.  Allen et al. v. Roy A. Cooper III as Governor of North Carolina et al., 995 F.3d 337 (4th Cir. 2019) [hereinafter ‘Mr. Allen’ and ‘Mr. Cooper’].  At the center of the controversy is the Copyright Remedy Clarification Act of 1990 [hereinafter ‘CRCA’], because this statute abrogates state sovereign immunity for copyright infringement. The question before the Court is whether the CRCA is invalid because Congress has no constitutional authority to eliminate state sovereign immunity for copyright infringement.

Prior to this litigation and through his company Nautilus Productions, LLC, Mr. Allen created several videos and still photographs [hereinafter ‘the works’] of a famous submerged pirate ship near the North Carolina coast. After approximately ten years of creating these works, Mr. Allen registered them in the United States Copyright Office.  The North Carolina Department of Natural and Cultural Resources [hereinafter ‘the Department’] thereafter publicly displayed these works without Mr. Allen ‘s permission. Although the Department agreed to refrain from displaying the images under a 2003 settlement, it nevertheless recommenced this use. It also officially designated these videos and stills as public records which did not qualify for copyright protection.

The district court concluded that state sovereign immunity did not protect North Carolina from lawsuits by private parties for copyright infringement. However, after an interlocutory appeal the Fourth Circuit reversed and remanded this ruling primarily for two reasons. First, it held that under earlier Supreme Court decisions Congress had no power through the intellectual property clause of Article I of the Constitution [hereinafter Article I] to abolish state sovereign immunity.  The Fourth Circuit also concluded that section 5 of the Fourteenth Amendment [hereinafter ‘section 5’] provided no authority, because elimination of state sovereign immunity under this provision requires a pattern of willful taking of property. However, in this instance Congress had enacted CRCA without sufficient evidence of this pattern. The court also concluded that CRCA was overbroad, in large part because it did not distinguish between willful infringement and merely negligent state acts.

In his certiorari writ and reply brief, Mr. Allen contended that Article I does provide authority for enacting the CRCA. For his position, Mr. Allen relied upon Central Virginia Community College v.  Katz, 546 U.S. 356 (2006) in which the Court held that based upon Article I, states do not possess sovereign immunity in bankruptcy proceedings. According to Mr. Allen, such a holding indicates the Court’s recent willingness to examine Article I authority for elimination of state sovereign immunity on a clause by clause basis.  As a second source of constitutional support for Congressional authority, Mr. Allen contended that the Court has previously held that Congress may enforce section 5 by eliminating state sovereign immunity in Fitzpatrick v. Bitzer, 427 US 445 (1976). Mr. Allen agreed that the CRCA remedy must be congruent and proportional to the constitution violation. However, in this instance Congress had considered sufficient evidence of a pattern of willful copyright infringement by states: In fact, a one hundred- and fifty-page official U.S. copyright office study comprised overwhelming evidence that infringement by state entities is a serious continuing problem. In this respect the Fourth Circuit had diminished the legal significant of this report, and consequently it erroneously concluded that CRCA remedies were overly broad and therefore unconstitutional under section 5.

Mr. Cooper’s legal position is substantially similar to the Fourth Circuit’s conclusions and analysis. This case will be heard in the next term, so please stay tuned.

©2019 Adrienne B. Naumann, all rights reserved. Ms. Naumann does not endorse or sponsor the advertisements at adriennebnaumann.wordpress.com.

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