Allen v. Cooper: State Sovereign Immunity in Copyright Infringement
In 1718, the infamous pirate Edward Teach, better known as Blackbeard, lost his flagship, the Queen Anne’s Revenge, after running it aground in what is now Beaufort Inlet, North Carolina. In 1996, Intersal, Inc., a marine salvage company, discovered the remains of the Queen Anne’s Revenge. North Carolina, the wreck’s legal owners, contracted with Intersal to conduct recovery operations. Intersal hired videographer Frederick Allen to document the recovery efforts. For more than a decade, Allen took photos and videos of the recovery operation. Allen attained copyright registrations for all the works he created. North Carolina published several of these works online, leading Allen to sue for copyright infringement.
This action began in the Eastern District of North Carolina, where the state moved to dismiss the case on sovereign immunity grounds. Allen v. Cooper, 244 F.Supp.3d 525 (E.D.N.C. 2017).
Allen claimed that the Copyright Remedy Clarification Act of 1990 (CRCA) removed the state’s claim of sovereign immunity in copyright infringement cases. Id. at 533. The Act amends 17 U.S.C § 511, stating, “any State… shall not be immune, under the Eleventh Amendment of the Constitution of the United States or any other doctrine of sovereign immunity, from suit in Federal court by any person … for a violation of any of the exclusive rights of a copyright owner.” Here, Judge Boyle sided with Allen, holding that the CRCA’s text is a clear abrogation of state sovereign immunity by Congress, and Congress had the proper constitutional basis for abrogation under section 5 of the Fourteenth Amendment. Id. at 533, 535.
On appeal to the Fourth Circuit, Judge Niemeyer reversed, reading Florida Prepaid Post-Secondary Ed. Expense Bd. V. College Savings Bank, 527 U.S. 627 (1999) as preventing the abrogation of state sovereign immunity under both Article I and Section 5. Allen v. Cooper, 895 F.3d 337 (4th Cir. 2018). The Supreme Court granted cert.
In an opinion authored by Justice Kagan, the Court examined whether the CRCA abrogates state sovereign immunity in copyright infringement actions. Allen v. Cooper, 140 S.Ct. 994 (2020).The Court held that Congress used “unequivocal statutory language,” in the CRCA to abrogate state sovereign immunity but did not have the constitutional authority to intrude on a state’s 11th Amendment sovereign immunity protection. Id. at 1000-1001.
Allen first argued that Congress had authority to abrogate state sovereign immunity based on Article I of the Constitution. Id. at 1001. He claimed that the Court adopted a clause-by-clause approach in Central Va. Community College v. Katz, 546 U.S. 356 (2006), “to evaluat[e] whether a particular clause of Article I allows the abrogation of sovereign immunity.” Id. at 1002. In Katz, the Court exempted Article I’s Bankruptcy clause “from the general rule that Article I cannot justify haling [sic] a state into federal court.” Id.
However, the Court rejected such a clause-by-clause reading and refused to further extend the exemption to any other power under Article I. See id. at 1002-1003. The Court found that the Bankruptcy Clause is unique among Article I and that the “clause embraced the idea that federal courts could impose on state sovereignty.” Id. at 1002.
Next, Allen argued that Congress had authority to abrogate state sovereign immunity based on Section 5 of the Fourteenth Amendment. Id. at 1001.
Section 5 of the 14th Amendment may authorize Congress to strip the state of immunity. Id. at 1003. To fall within Section 5 authority, “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 1004 (quoting City of Boerne v. Flores, 521 U.S. 507 (1997)). That means that courts have to consider the nature and extent of state conduct that is in violation of the Fourteenth Amendment as well as the scope of Congress’ response to that injury. Id. at 1004. The Court found Florida Prepaid controlling, a case concerning the validity of the patent equivalent of the CRCA, the Patent Remedy Act. Id. at 1005.
On reviewing a report about the effects of the 11th Amendment on copyright enforcement from the then-Register of Copyrights, Ralph Oman, the Court emphasized that it included only a dozen instances of state copyright infringement, seven court cases and five uncorroborated statements from public comments. Id. at 1006. Of those, only two were found to be willful infringement, which is a prerequisite to raise a constitutional issue. Id.
The Court therefore found that there was not enough evidence of Fourteenth Amendment injury to support the CRCA abrogating state sovereign immunity and it failed the congruence and proportionality test laid forth by the Court. Id. at 1007.
For the reasons stated above, the Court affirmed the Fourth Circuit’s decision.
North Carolina’s invocation of sovereign immunity seemed the most expeditious decision, short of settling, for disposing of this case without the expenses of a lengthy trial. The state likely had meritorious arguments as to the ownership of the copyrights at issue given that Allen created these works under contract with Intersal, who contracted with the state to conduct salvage operations.
Allen addressed a fringe issue of copyright law, the invocation of state sovereign immunity in copyright infringement, and will presumably have little impact on copyright. States do not have a history of infringing copyright. No surge in patent infringement by states occurred after the decision in Florida Prepaid, the patent equivalent to this case, in 1999, and the same should be expected here. As Ralph Oman acknowledged in his testimony about the report, “The states are not going to get involved in wholesale violations of the copyright laws.” Id. at 1006.