Did Congress have the power under Article I of the Constitution or Section 5 of the Fourteenth Amendment to pass the Copyright Remedy Clarification Act, which abrogated State’s sovereign immunity from violating federal copyright law?
This case asks the Supreme Court to determine whether Congress has the power to revoke States’ sovereign immunity from federal copyright infringement under the Copyright Remedy Clarification Act (“CRCA”). Frederick Allen, a videographer, and his video production company argue that the CRCA is a valid exercise of Congress’s enforcement power under the Intellectual Property Clause (“Clause”) of the Constitution. Allen and his company also argue that the CRCA is valid because it enforces his due process rights under Section 5 of the Fourteenth Amendment. Roy Cooper, the governor of North Carolina, argues that the CRCA is unconstitutional and that Congress’s Section 5 power to abrogate state sovereign immunity does not apply in this case. The outcome of this case has important implications for copyright holders and copyright enforcement, as well as for determining the extent of Congress’ power to abrogate state sovereign immunity.
Questions as Framed for the Court by the Parties
Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
The Queen Anne’s Revenge is a former French merchant vessel that was captured by the pirate Edward Teach, more commonly known as Blackbeard, in 1717. Teach abandoned the Revenge in 1718 when it ran aground off the coast of Beaufort, North Carolina.
Under N.C. Gen. Stat. § 121-22, the wreck was subject to North Carolina’s “exclusive dominion and control.” In 1996, the private salvage firm Intersal discovered the wreck, and in 1998 it entered into a salvage agreement with North Carolina (“State”) and North Carolina’s Department of Natural and Cultural Resources (“Department”). Intersal contracted with Petitioners Frederick Allen and his production company Nautilus Productions, LLC (collectively “Allen”) to have Allen document the salvage. The salvage agreement gave Intersal “exclusive right to make and market all commercial narrative . . . accounts of project related activities,” while reserving for North Carolina the right to make non-commercial educational video and/or film documentary and to have other documentary items (maps, field notes, photographic records) available to become public record.
During the salvage process, Allen registered thirteen copyrights for various documentary materials, each covering a year’s worth of footage. In 2013, Allen objected to the Department’s online publication of his work, saying it infringed his copyrights. This dispute led to a settlement agreement on October 15, 2013.
The settlement agreement divided the footage into commercial and non-commercial categories, with the categories delineating the parties’ rights as to the documentary materials and setting requirements for watermarks, time codes, and links to Department and company websites.
After the settlement agreement was executed in 2013, Allen alleged that the Department resumed infringing Allen’s copyrights and sent the Department a takedown notice. Allen brought suit in December 2015 against, among others, the State and six Department officials in both their individual and official capacities. The amended complaint contained five counts. In sum, the counts alleged copyright infringement and that N.C. Gen. Stat. §121-25(b), which was enacted in 2015, was enacted in bad faith and was unenforceable because it was preempted by federal copyright law. The Department ultimately complied with Allen’s takedown notice in November 2016, shortly before a hearing on the Department’s motion to dismiss.
Before the district court, the State asserted a defense of sovereign immunity under the Eleventh Amendment and moved to dismiss. In response, Allen argued that sovereign immunity was abrogated by the Copyright Remedy Clarification Act (“CRCA”). The district court denied the State’s motion to dismiss, and the State appealed the denial. On appeal, the Fourth Circuit reversed the district court decision, holding that the CRCA was not a valid abrogation of state sovereign immunity.
DOES THE INTELLECTUAL PROPERTY CLAUSE IMPLIEDLY ALLOW FOR THE ABROGATION OF STATE SOVEREIGN IMMUNITY?
Allen argues that the Intellectual Property Clause (“Clause”) in Article I of the U.S. Constitution allows Congress to revoke states’ sovereign immunity. According to Allen, the Supreme Court has held that Congress can revoke a state’s sovereign immunity if there is compelling evidence that those who drafted the Constitution (“Framers”) intended for states to give up their ability to be immune from suit. Further, Allen asserts that such intent for states to surrender sovereign immunity is evident when the Constitution explicitly states that Congress has an exclusive right not shared with other branches of government. Allen then contends that the text of the Clause—which gives Congress the power to “secure” to authors and inventors “exclusive” rights—gives Congress sole power to grant copyrights and protect individuals’ exclusive rights to their copyrights. Therefore, Allen argues, the Framers did not intend for states to maintain sovereign immunity after infringing on an individual’s federal copyright.
Next, Allen asserts that preventing individuals from suing states for copyright infringement will upset the balance between federal and state law constructed by the Framers and allow states to disrupt the federal scheme created to support and reward the work of copyright holders. Allen contends that it is clear that the Framers intended for the Clause to reject states’ sovereign immunity because the Clause was passed unanimously without debate, indicating a general consensus in the value of creating a consistent federal response. As further proof of the intent of the Framers to revoke state sovereign immunity, Allen points to the Copyright Act of 1790. Allen continues that this Act was passed by the First Congress during the time of ratification of the Constitution, which established a uniform federal system that could not be realized unless an individual could enforce intellectual property rights in all states.
Respondents Roy A. Cooper, III, and others (collectively “Cooper”) counter that the Constitution rarely revokes state sovereign immunity because it imposes strict requirements to do so: for a constitutional provision to infringe on a state’s sovereign immunity, it must be expressly written or undeniably implied. According to Cooper, the Clause fails this test because it does not expressly authorize suits against states. First, Cooper argues that the Clause’s use of the word “secure” does not require Congress to protect copyrights from any and all infringement, but rather only authorizes Congress to create future copyrights that are subject to the standard constitutional restrictions on federal legislation. Second, Cooper asserts that the Supreme Court continued the custom of both federal and state governments being able to regulate copyrights when it ruled that Congress does not have exclusive control over copyrights under the Clause. Alternatively, Cooper maintains that preserving state sovereign immunity will continue to allow Congress to secure copyrights because it only precludes one kind of relief: seeking damages against a state.
Lastly, the broad goal of national uniformity, Cooper argues, is insufficient to support the argument that the Framers intended to give Congress the ability to restrict state sovereign immunity under the Clause. Otherwise, according to Cooper, all powers granted to Congress under Article I would allow it to revoke state sovereign immunity. Cooper also disputes that the unanimous passage of the Clause provides support for Allen’s argument because that reasoning was used by the Supreme Court specifically in the context of the Bankruptcy Clause, which was explicitly put forth to infringe on state sovereign immunity. Finally, the Copyright Act of 1790, Cooper contends, limited its protection to certain categories of writing against intrusions by individuals not sovereign entities.
DOES CONGRESS HAVE AUTHORITY TO ENACT THE CRCA UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT?
Allen argues that Section 5 of the Fourteenth Amendment provides an alternative ground for revoking sovereign immunity under the CRCA. Allen asserts that Section 5 of the Fourteenth Amendment grants Congress the authority to carry out the protections under the Fourteenth Amendment by both providing remedies for and deterring infringement of substantive due process rights guaranteed by the Fourteenth Amendment.
According to Allen, Congress has the authority under Section 5 to create a private remedy for copyright holders against the states because it is a proportionate and congruent response to state violations of federal copyright law. Allen contends that this remedy is proportionate and congruent, as required by the Supreme Court, because it merely allows for copyright holders to recover when states violate their federal copyrights.Allen emphasizes that an alternative remedy cannot act as an adequate solution because of the many issues faced by copyright holders in bringing suits for infringement. For example, Allen notes that federal courts have original jurisdiction over copyright claims so an individual cannot sue under state law or common law unless the state consents to suit; issuing injunctions to prevent states from continuing to use copyrighted material is costly and does not remedy past violations; and even in suits brought under state law the proceedings and outcomes will vary across jurisdictions, undermining the goal of a consistent federal copyright system.
Finally, Allen asserts that the legislative history demonstrates that Congress passed the CRCA to relieve individuals from states’ repeated violations of copyrights that harmed copyright holders without penalty. According to Allen, Congress based its enforcement of the CRCA on strong evidence of states’ copyright infringement: public reports of individual issues with suing states for copyright violations, testimonies at hearings before the House of Representatives alleging significant state copyright infringement, and many examples of flagrant copyright violations by the states.
Cooper counters that Congress cannot enforce the CRCA under Section 5 of the Fourteenth Amendment because it fails the two-part test required by the Supreme Court. First, Cooper argues, there is no evidence that Congress passed the CRCA to address states’ violations of the copyright act in order to enforce the Due Process Clause. Second, Cooper continues, the remedy provided under the CRCA is not proportionate. According to Cooper, only deliberate infringement of copyrights violates due process, and in enacting the CRCA, Congress focused on negligent or innocuous copyright violations. Further, Cooper contends that it is evident that Congress failed to thoroughly consider alternative remedies because the text of the statute does not mention other forms of relief and ignores alternatives to injunctive relief that comply with due process: breach of contract and tort claims under state law as well as takings claims and claims directly against responsible individuals under federal law.
Next, Cooper disputes Allen’s argument that there is no adequate alternative remedy for copyright holders besides the CRCA. Cooper explains that alternative remedies such as state-law claims would not be preempted by the CRCA and, regardless, alternative federal claims are available. Cooper argues that allowing individuals to bring copyright claims under state law would not undermine the uniform federal copyright scheme because historically the majority of state copyright law has not been preempted by the CRCA.
Finally, Cooper contends that the legislative history indicates that Congress believed state copyright violations were uncommon and that examples given by Allen are not enough to allow abrogation under Supreme Court precedent. According to Cooper, there is minimal evidence—no more than twelve identified incidents—of state copyright infringement before the Senate, and only five recorded instances of individuals having difficulty trying to sue states for copyright infringement.
IS FLORIDA PREPAID CONTROLLING PRECEDENT?
Allen argues that the Supreme Court’s decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (“Florida Prepaid”) does not foreclose the Court from analyzing this case or, alternatively, that it should be overruled for not fully analyzing Congress’s powers of abrogation under the Clause. Allen maintains that Florida Prepaid solely addressed the validity of the Patent Remedy Act under Section 5 of the Fourteenth Amendment. Thus, Allen contends, Florida Prepaid only assumed but did not decide that under existing law, Congress could not authorize private suits against states under its Article I powers. Allen contends that the facts of this case sufficiently differs from those in Florida Prepaid to justify a different ruling because of the substantial legislative history supporting the CRCA and the fact that the CRCA uses a proportionate remedy that is otherwise unavailable.
Cooper counters that the Supreme Court’s holding in Florida Prepaid applies to the facts of this case and thus bars private suits against states under the Clause. According to Cooper, the Supreme Court in Florida Prepaid struck down the Patent Remedy Act on the basis that under the Clause, Congress cannot empower individuals to bring private lawsuits against the states. Cooper maintains that Florida Prepaid controls because under Article I, Congress’s power over patents and copyrights are linked, so they should have consistent interpretations. Cooper argues that Florida Prepaid clearly established that Congress did not have the power to revoke sovereign immunity under the Patent Clause and the Court should adhere to the ruling in that decision in this case. Lastly, Cooper emphasizes there is a heightened standard to overturn Florida Prepaid because (1) it would be disruptive to states who have relied on Florida Prepaid and (2) Congress has denied opportunities to overrule the holding in the past.
ENFORCING COPYRIGHTS AGAINST THE STATES
The Recording Industry Association of America (“RIAA”), in support of Allen, argues that when the CRCA was made law in 1990, state infringement of copyright holder’s rights was a serious problem, and that without the CRCA copyright holders did not have a satisfactory method of enforcing their rights. The RIAA contends that without the ability to recover attorneys’ fees and costs against state infringers, many copyright holders would not be able to afford to bring suit, especially in cases where an injunction alone would not justify the costs of suit. The ability to enforce copyright, the RIAA argues, is essential to encouraging the making of creative works, and without it the incentive to make creative works is “ultimately undermine[d].” The Copyright Alliance and the Chamber of Commerce of the United States, in support of Allen, reinforce this assertion, stating that copyright and the ability to enforce it is essential for copyright holders to be able to fully benefit from their work, or else they are less likely to create and the public is less likely to see the benefits of that creation.
The American Library Association (“ALA”), in support of Cooper, responds that copyright holders are able to pursue enforcement actions despite states’ sovereign immunity claims and in recent years have done so multiple times. The ALA argues that recent cases show that copyright holders are able to enforce their copyrights against states when necessary, and the fact that there have been relatively few such cases shows that states’ copyright infringement is not a “serious and accelerating problem.” Additionally, the ALA argues that the elimination of sovereign immunity would be particularly damaging to the digital preservation efforts of state-run libraries and archives. These institutions, according to the ALA, use reproduction and distribution to digitally preserve works to the extent they believe it is permitted by fair use. Fair use, the ALA argues, can be an uncertain doctrine, and litigation around it in the absence of a sovereign immunity defense could make preservation efforts too costly to pursue. The Association of Public and Land-Grant Universities, in support of Cooper, further argues that lack of a sovereign immunity defense would subject state universities to costly and meritless lawsuits, diverting resources from education and research.
THE APPROPRIATE SCOPE OF SOVEREIGN IMMUNITY
The RIAA argues that Congress must be allowed to use its Article I Intellectual Property Clause power to abrogate state sovereign immunity because Congress must be able to ensure that there is an “exclusive right” for authors and inventors. The RIAA continues that a blanket unavailability of abrogation under Article I would prevent Congress from fully using the powers it was given under the Article. The Constitutional Accountability Center (“CAC”), in support of Allen, further argues that Congress’s authority under Section 5 of the Fourteenth Amendment is important for enforcing the rights guaranteed by that amendment. The CAC continues that Section 5 gave Congress the broad power to use “appropriate legislation” to enforce the rights guaranteed within the amendment. This enforcement power is necessary, the CAC contends, if Congress is to be able to protect against unconstitutional actions by states. The CAC maintains that Congress’s power to abrogate sovereign immunity is the primary concern; if Congress is limited in its ability to abrogate immunity, then Congress will be less able to ensure the rights of citizens against actions of states.
West Virginia and thirty other states (“West Virginia”), in support of Cooper, respond that allowing the abrogation of sovereign immunity in this case would have negative effects on the availability of sovereign immunity in contexts far beyond copyright law. Sovereign immunity, West Virginia argues, is essential to our form of government, and thus the standards for its abrogation must remain high. West Virginia maintains that to declare the CRCA valid under either Article I or Section 5 of the Fourteenth Amendment would “create confusion” and “water down” the doctrine of sovereign immunity, potentially leading to broad abrogation under the Commerce Clause or increased baseless litigation against states in federal courts.
- Adam Liptak: Blackbeard’s Ship Heads to Supreme Court in a Battle over Another Sort of Piracy, The New York Times (Sept. 2, 2019).
- Krista L. Cox: SCOTUS to Decide Whether States Can Be Sued for Copyright Infringement in Case Involving Blackbeard’s Ship, Above the Law (June 20, 2019).
- Steve Brachmann: Supreme Court to Rule Whether Congress Appropriately Abrogated State Sovereign Immunity for Copyright Claims in Allen v. Cooper, IP Watchdog (June 18, 2019).