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Sovereign Pirates: Copyright Owners Lose Their Remedies Against State Governments

By Brian D. Wassom

State governments are now free to reproduce and exploit the copyrighted content created by private citizens with abandon, and there is nothing the owners can do about it under federal copyright law. That is the stark reality under the Supreme Court's unanimous decision in Allen v. Cooper, which was issued on Monday, March 23, 2020.

The issue presented in Allen v. Cooper was whether Congress validly abrogated state sovereign immunity for copyright infringement via the Copyright Remedy Clarification Act (CRCA). As an amendment to the Copyright Act, the CRCA provided that: "...remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State..." 17 USC 511(b).

The case arose from the discovery of Blackbeard's flagship, Queen Anne's Revenge, off the North Carolina coast. Frederick Allen and his company, Nautilus Productions, filmed the shipwreck and registered copyrights for the videos and photos that they created; in 2015, they filed a lawsuit claiming that North Carolina had infringed their copyrights by posting unauthorized copies of an independent documentarian's copyrighted videos to its State-owned website. The State did not bother denying what it had done; rather, it argued that the CRCA had not validly repealed 11th Amendment immunity for copyright infringement and therefore it could not be sued in federal court. The U.S. Court of Appeals for the 4th Circuit agreed. It was in good company. In prior decisions, the CRCA had also been deemed unconstitutional by district and appellate courts in the 1st, 2nd, 4th, 5th, 6th, 9th, and 11th Circuits.

Allen asked the justices to weigh in, telling them that, unless the Supreme Court intervened, the "creators of original expression will be left without remedy when States trample their federal copyrights." The justices granted that request—and confirmed that Allen was just as helpless to vindicate his copyright interests as he had feared.

The US Supreme Court unanimously affirmed the Fourth Circuit's decision to strike the CRCA as unconstitutional. The CRCA had completely abrogated the States' sovereign immunity with respect to copyright infringement. This allowed plaintiffs to sue States for infringement and to hold them liable to the same extent as any other defendant. In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 US 627 (1999), however, the Supreme Court had held unconstitutional the Patent Remedy Act, a nearly identical statute that had abrogated State sovereign immunity with respect to patent infringement. Twenty-one years later, the Allen Court almost mechanically applied that precedent, finding that the rationale of Florida Prepaid (and the cases on which it had relied, principally Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) and City of Boerne v. Flores, 521 U. S. 507 (1997)) required the Court to invalidate the CRCA.

Under the doctrine of sovereign immunity as the Court has constructed it in the years since the CRCA was passed, the Copyright and Patent Clause of Article I in the Constitution does not provide Congress the power to abrogate States' immunity. The 14th Amendment does—but only if the remedy adopted is "congruent and proportional" to well-documented violations of due process by the States. In the context of copyright infringement, according to the Allen Court, this required Congress to make specific findings that States had been engaged in widespread, intentional infringement for which they were not otherwise providing compensation to copyright owners. The CRCA's legislative record included a 158-page report supporting the Act by the then-Register of Copyrights, which had been informed by a year-long examination and public comments from 40 copyright holders and industry groups. Nevertheless, the Court dissected the substance of this report and the remaining legislative history and found it insufficient to justify the CRCA's wholesale abrogation of sovereign immunity.

Like Lucy holding the football for Charlie Brown, the majority opinion invited Congress to try again, adopting a more evidence-based, narrowly tailored abrogation this time. Perhaps as encouragement to do so, the justices painted a stark picture of the leeway the Court was granting States to infringe media copyrights going forward. Justice Kagan wrote for the majority that, by adapting the intent of the CRCA to the Court's evolving jurisprudence on sovereign immunity, Congress could "effectively stop States from behaving as copyright pirates." Concurring, Justice Breyer was even more pointed: "one might think that Walt Disney Pictures could sue a State ... for hosting an unlicensed screening of the studio's 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels). Yet the Court holds otherwise."

Unless and until Congress takes up the majority's invitation to try again, therefore, media companies and other copyright owners will have few options to curtail infringement of their copyrights by State governments and other state actors such as state universities, hospitals and other research institutions. And even if a new statute could pass constitutional muster under Allen v. Cooper, the remedy that the Court deems "proportional" may bear little resemblance to the consequences for copyright infringement by non-State actors.

Brian D. Wassom is a partner at Warner Norcross + Judd LLP in Detroit, Michigan.

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