By: Grant Daniel Cole
The power struggle between the federal and state governments is a hallmark of the American Legal system. With the Supreme Court’s recent decision in Allen v. Cooper, 140 S. Ct. 994, (2020), the balance of power has shifted back to the states. The Court in Allen held that Congress lacked the constitutional authority to abrogate States’ Eleventh Amendment sovereign immunity and allow States to be sued in federal court for copyright infringement. Thus, the CRCA, the statute Congress passed that purportedly abrogated States’ sovereign immunity from copyright suits, was deemed unconstitutional. However, the Court in Allen should have held the statute was constitutional as applied underUnited States v. Georgia rationale.Furthermore, despite holding that the CRCA was unconstitutional, the Court lays out a blueprint for further legislative action. This post explores both the alternative arguments in Allen and the impact the case will have on future legislative action in this area.
Pirating copyrighted materials is a frequent occurrence in our internet-centric society. Copyright laws are meant to protect copyright holders from these infringements. But what if a state government is the one doing the infringing? Congress attempted to curtail states’ incidents of copyright infringement by passing the Copyright Remedy Clarification Act Congress (CRCA),[i] but the law was ruled unconstitutional in Allen v. Cooper.[ii] Congress can still bring “digital Blackbeards to justice”[iii] and stop states from behaving as copyright pirates, notwithstanding the Supreme Court’s ruling in Allen v. Cooper. In Allen v. Cooper, the Court held that states were immune from copyright infringement suits because of their sovereign immunity under the Eleventh Amendment, and Congress’ attempt to abrogate state sovereign immunity through the CRCA was unconstitutional.[iv]
Despite the Court’s holding in Allen v. Cooper, there was still an avenue for Allen to prevail under the reasoning outlined in United States v. Georgia.[v] Also, the Court did expressly leave open possible legislative avenues for addressing the issue of States’ copyright infringement, despite ruling that the CRCA was unconstitutional.
Allen, a videographer, was hired by a private salvage company working with North Carolina to create videos of the famous pirate Blackbeards’ ship, the Queen Anne’s Revenge, which had sunk off the coast of North Carolina. Allen registered copyrights for all of those works, which spanned over a decade.[vi] In 2013, Allen brought suit against North Carolina, alleging that they were posting his videos online in violation of his copyrights.[vii] Though Allen and North Carolina settled for $15,000, the State continued to post his material online, prompting Allen to file a federal lawsuit under the CRCA.[viii] The district court agreed with Allen that he could bring an infringement suit based on the CRCA,[ix] but the Fourth Circuit reversed.[x]
Allen sued for copyright infringement under the CRCA. The CRCA, passed in 1990, was Congress’ attempt to abrogate states’ sovereign immunity for copyright infringement purposes.[xi] The statute was designed to give copyright holders the same causes of action against a state as they would a private party.
As noted above, North Carolina used a sovereign immunity defense. Sovereign immunity is a doctrine that prevents a sovereign, here, the states, from being sued unless they consent. For the states, this power stems from the Eleventh Amendment and allows states to avoid being sued in federal court by private parties.[xii] However, the Court has allowed Congress to abrogate states’ sovereign immunity if two conditions are met.[xiii] First, Congress must have enacted “unequivocal statutory language” abrogating the states’ immunity from the suit.[xiv] Second, the abrogation must be supported by a constitutional provision.[xv] Here, there was no issue that the CRCA unequivocally attempted to abrogate the states’ immunity from copyright infringement suits.[xvi] Thus, the issue was whether Congress had the constitutional authority to pass the CRCA. Allen argued that two constitutional provisions gave Congress the power to pass the CRCA: Article I, and Section 5 of the Fourteenth Amendment.
Allen’s first argument was that Art. I, § 8, cl. 8 gave Congress the authority to abrogate state sovereign immunity from copyright suits.[xvii] However, the Supreme Court in their case Seminole Tribe, stated that “Article I cannot be used to circumvent” the limits sovereign immunity “place[s] upon federal jurisdiction.”[xviii] However it is important to note that the Supreme Court carved out an exception to Seminole Tribe’s rule regarding Article I in Central Virginia Community College v. Katz.[xix] Allen argues that Katz[xx] goes against Seminole Tribe’s rule because the Court held that Article I’s Bankruptcy Clause enables Congress to abrogate states’ sovereign immunity in bankruptcy proceedings. This is despite Seminole Tribe’s general rule that Article I cannot justify bringing a state into federal court.[xxi] However, the Court explained that bankruptcy was unique and provided an exception to Seminole Tribe’s general rule.[xxii]
Allen also argued that Congress had the constitutional authority to pass the CRCA under Section 5 of the Fourteenth. Amendment, which allows Congress to tailor a remedy for due process violations that is “congruent and proportional” to the constitutional due process violation.[xxiii] The Court said the CRCA fails the proportionality test because the “Fourteenth Amendment injury supporting the CRCA . . . is, exceedingly slight.”[xxiv] The Court looked to the legislative history and only found a few instances of “willful infringement” by states of private parties’ copyrights.[xxv] The sparsity of instances thus did not support such a broad abrogation of sovereign immunity attempted by the CRCA.
Additionally, the Court rejects Allen’s arguments because many of them were already rejected in a case also dealing with the abrogation of sovereign immunity for claims related to intellectual property.[xxvi] In Florida Prepaid, the constitutionality of the Patent and Plant Variety Protection Remedy Clarification Act (PCA) was at issue.[xxvii] The PCA was passed around when the CRCA was passed and they both were attempts by Congress to abrogate States’ sovereign immunity. The Court in Allen stated the CRCA, the PCA copyright analog, fails for the same reasons the PCA did and that an intellectual property owner’s “exclusive Right” under Article I stops when it runs into sovereign immunity.[xxviii] The Court also emphasized the importance of stare decisis and that a “special justification” was needed to overturn precedent.[xxix] Here, the Court found no such “special justification.” The Court even said that “Florida Prepaid all but prewrote our decision today.”[xxx]
Even assuming the Court was dead set on following Florida Prepaid, and assuming that Katz was only relevant to bankruptcy cases and did not create a carve-out of Seminole Tribe’s general rule, the Court could have come out differently if Allen had argued the rationale set out in United States v. Georgia.[xxxi] As discussed above, Congress has the constitutional authority to pass an act under Section 5 of the Fourteenth Amendment if it is congruent and proportionate “to a pattern of violations of what the Court itself would recognize as violations of constitutional rights.”[xxxii] However, United States v. Georgia[xxxiii] holds that even if the law as a whole fails the congruency and proportionality test, it can still be a valid basis for abrogating state sovereign immunity when “a plaintiff invokes the Act in particular circumstances in which it serves to remedy “actual violations” of constitutional rights.”[xxxiv] Thus, although the Court had previously found that Title II of the Americans with Disabilities Act (ADA) was not generally congruent and proportionate to a pattern of constitutional violations,[xxxv] in United States v. Georgia the Court allowed Congress to validly abrogate States’ sovereign immunity for conduct that actually violates the Fourteenth Amendment.[xxxvi] Tennessee v. Lane also follows this “actual violation” logic.[xxxvii]
Interestingly, during oral arguments, Justice Alito offered the petitioners a proverbial lifeline and asked the petitioner’s attorney if he was making an argument under United States v. Georgia and he mistakenly said no.[xxxviii]The petitioner’s attorney later admitted he agreed with Georgia and Lane rationale set out by various amici briefs, but his initial mistake during oral arguments doomed the argument.[xxxix]
The Future The Court, in dicta, set out how Congress could go about “passing a valid copyright abrogation law in the future”[xl] This seems like an open invitation by the Court to revisit the issue, as the Court seems to lay out a blueprint for legislative action (to the chagrin of Justice Thomas).[xli] And since much of the Court’s Fourteenth Amendment analysis focused on a sparse legislative record regarding copyright infringement by States, it is not surprising that in the wake of Allen, two senators, Sens. Thom Tillis (R-North Carolina) and Patrick Leahy (D-Vermont) wrote letters to the U.S. Copyright Office and the U.S. Patent and Trademark Office “to begin a study on the extent to which intellectual property owners are suffering infringement at the hands of state government.”[xlii] The senators want the findings by April 31, 2021. Thus, hope still exists for Congress to bring digital Blackbeards to justice, even if the pirates are the states
[i] 17 U.S.C.A. § 501 (West 2019).
[ii] Allen v. Cooper, 140 S. Ct. 994, 1007 (2020).
[v] 546 U.S. 151 (2006).
[vi] Allen v. Cooper, 140 S. Ct. 994, 999 (2020).
[ix] Allen v. Cooper, 244 F. Supp. 3d 525 (E.D.N.C. 2017).
[x] Allen v. Cooper, 895 F.3d 337 (4th Cir. 2018).
[xi] 17 U.S.C.A. § 501 (West 2019).
[xii] Alden v. Maine, 527 U.S. 706 (1999).
[xiii] Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).
[xv] Allen v. Cooper, 140 S. Ct. 994, 1001 (2020).
[xvi] Id. (noting that the Congress had used clear had used clear language in the CRCA to establish their intent to abrogate states’ sovereign immunity, and that this condition was not at issue in the case.)
[xviii] Seminole Tribe, 517 U.S. at 73.
[xix] Cent. Va. Cmty. College v. Katz, 546 U.S. 356 (2006).
[xxi] Allen v. Cooper, 140 S. Ct. 994, 1002 (2020).
[xxii]Id. at 1003 (noting that Katz points “to a good-for-one-clause-only holding” and cannot be used to as a basis to go against the general rule in Seminole Tribe)
[xxiii] City of Boerne v. Flores, 521 U.S. 507 (1997).
[xxiv] Allen, 140 S. Ct. at 1007 (2020).
[xxvi] Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 635 (1999).
[xxvii] 35 U.S.C. §§ 271(h), 296(a) (1992).
[xxviii] Allen, 140 S. Ct. at 1002.
[xxix] Id. at 1003.
[xxx] Id. at 1007.
[xxxi] 546 U.S. 151 (2006).
[xxxiii] Georgia, 546 U.S. at 158.
[xxxv] Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
[xxxvi] Georgia, 546 U.S. at 158.
[xxxvii] Tennessee v. Lane, 541 U.S. 509 (2004).
[xxxviii] Dorf, supra note xxii, at pg 31.
[xl] Allen v. Cooper, 140 S. Ct. 994, 1007 (2020).
[xli] Id. at 1008 (“I do not join the Court’s discussion regarding future copyright legislation . . . [w]e should not purport to advise Congress on how it might exercise its legislative authority, nor give our blessing to hypothetical statutes or legislative records not at issue here.”).
[xlii] Eriq Gardner, Senators Ask U.S. Copyright, Patent Offices to Study Infringement by States, Hollywood Reporter (April 29, 2020, at 7:15 AM), https://www.hollywoodreporter.com/thr-esq/senators-ask-us-copyright-patent-offices-study-infringement-by-states-1292382