In Allan et al. v. Cooper et al., 589 U.S. ____ (2020), the United States Supreme Court [hereinafter ‘the Court’] held that Congress exceeded its constitutional authority when it enacted the Copyright Remedy Clarification Act [hereinafter ‘CRCA’]. The dispute focused upon the CRCA’s abrogation of sovereign immunity whenever private persons or entities sued a non-consenting state for copyright infringement. The Court unanimously held that there was no such abrogation, because the CRCA was not validly enacted under either Article I or the Fourteenth Amendment of the United States Constitution.
The litigation initially arose when Mr. Allan and the State of North Carolina entered into a venture where Mr. Allan videotaped and photographed the remains of what was originally a ship captured by a pirate named Bluebeard. Mr. Allan thereafter obtained copyright registrations for his videos and photos of the shipwreck. However, without his authorization North Carolina published portions of his registered works online, and despite a settlement agreement North Carolina continued to post and otherwise publish his works. North Carolina contended that it was protected by sovereign immunity from copyright infringement lawsuits by private parties.
However, the district court concluded that there was no sovereign immunity because the CRCA was a valid exercise of Congress’ power to protect property, such as, copyright registered works, under section 5 of the Fourteenth Amendment. The district court also held that the CRCA’s statutory abrogation of sovereign immunity was a proportional and congruent remedy for copyright infringement by a state. However, it also held that Congress had no authority to abrogate sovereign immunity under the intellectual property clause of Article 1.
On interlocutory appeal, the Federal Court of Appeals for the Fourth Circuit [hereinafter the “Fourth Circuit] reversed, because the record was unclear
- whether Congress relied upon section 5of the Fourteenth Amendment, and
- in any event the CRCA’s abrogation of sovereign immunity was not a congruent and proportional remedy for the asserted section 5 injury to property.
As a result, the CRCA was invalid and North Carolina was immune from copyright infringement liability.
The Court affirmed the Fourth Circuit, and in so doing it initially addressed sovereign immunity under the intellectual property clause of Article I. The Court stated that it previously resolved the same issue in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 626 (1999). In Florida Prepaid the Court held that Congress could not rely upon Article 1 to enact the Patent Remedy Act which also purported to eliminate sovereign immunity. It also distinguished Central Virginia Community College v. Katz, 546 U.S. 356 (2006) which held that the bankruptcy clause of Article 1 abrogated sovereign immunity. However, the Court distinguished this previous holding based upon the unique history of the bankruptcy clause.
The Court also relied upon Florida Prepaid to conclude that CRCA was unconstitutional under section 5 of the Fourteenth Amendment. As in Florida Prepaid, there was a sparse record of any pattern of intentional infringing conduct by states for works of private parties. Because of this sparse record, the remedy of completely eliminating sovereign immunity was not properly tailored to a limited abrogation which impinged upon the states in a less drastic and sweeping manner.
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