By Miles C. Skedsvold
The United States Supreme Court recently held in Allen v. Cooper that states retained their sovereign immunity in suits for copyright infringement, and that Congress’ efforts to abrogate that immunity
* * * * *
At its core, intellectual property law is all about who owns (and therefore gets to profit from) the valuable ideas that produce everything from technical innovations to artwork. When the person alleged to have infringed on another’s IP rights is a private person or corporation, the system is straightforward: federal law protects various forms of IP, and provides a menu of remedies depending on the violation. But what about when a state — a government unto itself — is the one infringing IP rights? Do the same rules apply? In short: no, because of sovereign immunity.
Sovereign immunity is the principle — born from the reality of the state’s raw power over its subjects — that the sovereign cannot be sued without its consent (which is referred to as “waiver”). This immunity is a core component of what it means to be sovereign
Unfortunately for IP holders, the Court has stymied much of Congress’ efforts to abrogate immunity. In 1999 the Supreme Court invalidated Congress’ effort to abrogate immunity for patent infringement, in a case called Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank. Recently, in Allen, the Court held the copyright effort failed as well.
* * * * *
Frederick Allen is a videographer who was hired to document the salvage operation for “Queen Anne’s Revenge,” the famous flagship of the pirate “Blackbeard.” After discovering that the state of North Carolina had used some of his photos in a newsletter and displayed some of his videos on a tourism website, Allen sued the state of North Carolina for copyright infringement. The State moved to dismiss the case, relying on sovereign immunity. The District Court sided with Allen, but the Fourth Circuit reversed.
In front of the Supreme Court, Allen had two basic arguments that the CRCA validly abrogated states’ immunity: the first (and more traditional argument) was that Congress could do so pursuant to its power under Section 5 of the 14thAmendment; the second was that Congress’ Article I power to grant and regulate intellectual property implicitly includes the power to abrogate states’ immunity to make them liable for infringement.
* * * * *
Abrogation Under the Fourteenth Amendment
The 14th Amendment is a valid source of abrogating sovereign immunity because, in addition to guaranteeing due process and equal protection, it also gives Congress express power to enforce its provisions (often against states and local governments) by “appropriate legislation.” But for legislation abrogating immunity to be “appropriate” under section 5, it must (in addition to containing a clear statement of intent to abrogate immunity) be “congruent and proportional” to “remedy or prevent” conduct which violates the 14th Amendment. Of course, “congruent” implies a baseline — here, constitutional violations; so in the case of abrogation, there must be enough violations to justify depriving the states of the immunity that is central to their sovereignty.
In Allen, the Court held that evidence of violations Congress had before it when it passed the CRCA simply didn’t weigh heavily enough to counterbalance abrogating states’ immunity. A report compiled for the purposes of the Act showed only a dozen possible examples of state infringement — and that report was not concerned with whether those violations would have also violated the due process clause of the 14th amendment. While the Court did not explain exactly what sort of record would have justified abrogation of immunity for copyright infringement, it did note that the evidence Congress leaned on in passing the CRCA was “exceedingly slight” and the remedy itself was expressly intended to be “uniform” rather than tailored with any particularity toward redressing or preventing unconstitutional conduct.” In that sense, the CRCA fell well short of compiling a record justifying abrogation.
Abrogation Under the Intellectual Property Clause
Congress has power under Article I of the Constitution “[t]o 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.”This provision, commonly known as the “intellectual property clause,” is the source of the Federal Government’s power to grant intellectual property rights and provide for their enforcement. In Allen’s view, Congress’s authority to abrogate sovereign immunity in copyright infringement suits naturally follows. Abrogation, he told the Court, is the only real way to “secure” a copyright holder’s “exclusive Right[s]” against potential infringers — including states. And while the Court has said in dicta that Article I can never be a valid source of authority to abrogate sovereign immunity, in a 2006 case called Central Va. Community College v. Katz, the Court permitted an Article I abrogation under the bankruptcy clause.
The problem for Allen, Justice Kagan wrote for a unanimous Court, is two-fold. First, permitting abrogation under the bankruptcy clause does not demand that other Article I powers like the IP clause
Second, and more importantly, the Court was not writing on a clean slate where the IP clause was concerned.Florida Prepaid rejected much the same argument in patent infringement cases; and while patent and copyright law are distinct in many respects, both bodies of law are derived from the same power-grant in the constitution. In that sense, the holding in Florida Prepaid governs in copyrights every bit as much as patents. Either Florida Prepaid had to be overruled, or it compelled the same result. The Court held the latter. Stare decisis “is a foundation stone of the rule of law,” Justice Kagan wrote, and the court demands “a special justification” beyond simply believing that the precedent in question was wrong.
* * * * *
There are three key lessons to take from Allen v. Cooper:
First, sovereign immunity is a core structural component of our dual-sovereign system, and so abrogation is a high bar. If the federal government is going to abrogate the immunity of the states, its authority to act cannot merely be some general constitutional power (like the Commerce Clause or the IP Clause); it must also be of a certain kind, i.e. clearly authorizing the specific act of abrogation. In that way, the states themselves — as ratifiers of the Constitution (and any amendments to it)—give their democratic consent to suit. A given state might not wish to be sued, but the federal Government—acting on the authority of two-thirds of its constituent states – has consent to exercise power to roll back their immunity.
Second, stare decisis played a key role in the decision. Regarding Allen’s IP clause argument, Justice Kagan emphasized that “Florida Prepaid all but pre-wrote [the Court’s] decision.” And while it is not clear that the Justices are all of a similar mind on what constitutes enough of a “special justification” to overrule precedent, eight justices joined the portion of her opinion requiring something other than a poorly reasoned decision.
Finally, abrogation for IP infringement might not be dead, but it appears comatose. Having just held to precedent in deciding the Article I question in Allen, it seems unlikely the Court will revisit its abrogation jurisprudence in this area any time soon. Moreover, the 14th Amendment analysis focused on the record before Congress leading up to the passage of the CRCA; unless data can show that there has been a significant uptick in constitutionally offensive copyright infringement since then, there is little reason to think another effort to abrogate sovereign immunity in IP cases would fare differently. Indeed, it is not even clear that there is a political will to take another swing at abrogation. Before the “how” of an abrogation effort can matter, there must be an effort in the first place. And as the congressional record of the CRCA shows, it’s just not clear that the states infringe IP rights frequently enough to drum up enough concern to spur legislation in the first place.
For now, when states are accused of infringing IP rights — their immunity prevails.
 See generally 589 U.S. ___ (2020).
 See, e.g., Alden v. Maine, 527 U.S. 706, 713 (1999).
 Id. at 714 (citing U.S. Const., Amdt. 11) (“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.”)
 See 35 U.S.C. §§ 271(h), 296(a) (the “Patent Remedy Act”) and 17 U. S. C. §511(a) (“Copyright Remedy Clarification Act”).
 527 US 627 (1999).
 See generally 589 U.S. ___ at *1-3 (2020).
 U.S. Const., Amdt. 14.
 City of Boerne v. Flores, 521 U. S. 507, 519 (1997).
 See Id.
 See Allen, 589 U.S ___, at *15.
 Id. at *15-16.
 Id. at *16.
 U.S. Const. Art. I §8, cl. 8.
 Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996).
 546 U. S. 356, 359 (2006).
 See Allen, 589 U.S ___, at *6-9.
 See Katz, 564 US at 373.
 Allen, 589 U.S ___, at *6.
 Id. at 7-8.
 It is worth noting that Justice Thomas did not join this part of the holding.
 Allen, 589 U.S ___, at *17.