Copyright and State Sovereign Immunity: The Allen v. Cooper Decision

Copyright and State Sovereign Immunity: The Allen v. Cooper Decision

Legal Sidebari

Copyright and State Sovereign Immunity:
The Allen v. Cooper Decision
May 15, 2020
On March 23, 2020, the Supreme Court issued its opinion in Allen v. Cooper, concluding that Congress
lacked the authority to enact the Copyright Remedy Clarification Act of 1990 (CRCA), which purported
to abrogate state sovereign immunity in copyright infringement actions. The CRCA, which sought to
remedy alleged state copyright infringement, provides that any “State, and any [State] instrumentality,
officer, or employee” shall be liable for copyright infringement “in the same manner and to the same
extent as any nongovernmental entity.” In Allen, the Supreme Court held that the CRCA was not a valid
exercise of Congress’s constitutional powers under Article I or Section 5 of the Fourteenth Amendment,
although the opinion leaves open the possibility that a narrower congressional abrogation of state
sovereign immunity for copyright suits might be constitutional.
The immediate practical effect of the decision is that copyright holders cannot sue state governments for
copyright infringement without their consent. The decision’s broader significance lies in clarifying the
limitations on Congress’s power to provide remedies for state constitutional violations. This Sidebar will
review the law of state sovereign immunity, the dispute in Allen v. Cooper, the Court’s opinion, and the
implications for Congress.
The Law of State Sovereign Immunity
Because states are separate and independent sovereigns within the U.S. federal system, they generally
cannot be sued in state or federal court without their consent. Although Congress has some authority to
abrogate state sovereign immunity—that is, to enact statutes authorizing certain lawsuits against states—
this authority is fairly narrow. First, Congress’s intent to abrogate state sovereign immunity must be
“unmistakably clear” from the statutory language. Second, even an unmistakably clear abrogation is
effective only when made under a “valid grant of constitutional authority.”
In the 1996 case of Seminole Tribe v. Florida, the Supreme Court held that Congress cannot abrogate state
sovereign immunity pursuant to its Article I powers, such as the Commerce Clause. Seminole Tribe
acknowledged, however, that Congress could rely on Section 5 of the Fourteenth Amendment as a source
of power to abrogate state immunity. In later cases, the Court established that Congress may rely on the
Fourteenth Amendment to abrogate state immunity only if there is “a congruence and proportionality”
between the constitutional injuries that the abrogation legislation seeks to remedy, and the means
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Congress uses to redress them. In determining whether legislation is congruent and proportional (and thus
constitutional), courts examine (1) “the scope of the constitutional right at issue”; (2) whether Congress
has “identified a history and pattern” of relevant constitutional violations by the states; and (3) whether
the law’s scope is “out of proportion” to a valid remedial objective.
Applying this test in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,
the Supreme Court in 1999 invalidated the Patent and Plant Variety Protection Remedy Clarification Act
(the Patent Remedy Act), which purported to abrogate state sovereign immunity for patent infringement
cases using nearly identical language as the CRCA. In enacting the Patent Remedy Act, Congress pointed
to three potential sources of constitutional authority: the Commerce Clause; the Intellectual Property (IP)
Clause, which provides Congress power to grant patents and copyrights; and the Fourteenth Amendment.
In light of Seminole Tribe, however, the parties conceded that Article I powers could not support the
Patent Remedy Act, and the Court thus agreed that “the Patent Remedy Act cannot be sustained under
either the Commerce Clause or the [IP] Clause.”
Instead, the primary issue in Florida Prepaid was whether the Patent Remedy Act was constitutional
under Congress’s powers to enforce the Fourteenth Amendment, which (among other things) provides
that states shall not “deprive any person of . . . property, without due process of law.” On this issue, the
Court found that although patents “may be considered ‘property’” within the meaning of the Due Process
Clause, not all patent infringement by states would violate the Constitution. Rather, state patent
infringement violates the Due Process Clause only when the infringement is both (1) “intentional or
reckless” and (2) without any adequate remedy under state law. Because the congressional record
supporting the Patent Remedy Act revealed only “a handful of instances of state patent infringement” that
did not necessarily violate the Constitution, Florida Prepaid held that the Patent Remedy Act’s abrogation
failed the congruence and proportionality test, and was therefore invalid.
In 2006, however, the Supreme Court limited the central holding of Seminole Tribe in Central Virginia
Community College v. Katz, which addressed whether a bankruptcy trustee could sue to recover certain
assets that a bankrupt business had transferred to several state-run schools. The state schools moved to
dismiss the bankruptcy proceedings on the basis of state sovereign immunity. Although Seminole Tribe
broadly stated that Congress could not abrogate state sovereign immunity pursuant to Article I powers,
Katz held that one Article I power—the Bankruptcy Clause—could support the abrogation of state
sovereign immunity. Rejecting the general statements of Seminole Tribe as “dicta,” the Court held that the
history and purposes of the Bankruptcy Clause amounted to a waiver of state sovereign immunity effected
by the “plan of the [Constitutional] Convention” itself. In reaching this conclusion, the Court relied on the
in rem (i.e., property-based) nature of bankruptcy jurisdiction, and the Bankruptcy Clause’s purpose of
establishing a uniform federal response to the problems created by the state-by-state patchwork of
insolvency laws that existed before the Founding.
The Dispute in Allen v. Cooper
In 1717, the pirate Edward Teach (better known as Blackbeard) captured a French vessel and renamed her
Queen Anne’s Revenge. The next year, the ship ran aground and Blackbeard abandoned her off the coast
of North Carolina. In 1996, the private salvage firm Intersal discovered the wreck, and North Carolina’s
Department of Natural and Cultural Resources (the Department) signed an agreement with Intersal to
recover it. Intersal in turn retained Rick Allen, a videographer, to document the salvage effort, and Allen
later registered copyrights in his photographs and videos of the recovery.
In 2013, after the Department posted some of Allen’s images online, Allen accused the Department of
copyright infringement. The parties settled this dispute and entered into a settlement agreement.
Subsequently, the Department posted several videos online that incorporated Allen’s copyrighted footage.

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Allen then sued the Department and named state employees for copyright infringement. The Department
moved to dismiss the suit based on state sovereign immunity.
The district court denied the motion to dismiss, holding that Congress had validly abrogated state
sovereign immunity under Section 5 of the Fourteenth Amendment. On appeal, the U.S. Court of Appeals
for the Fourth Circuit (Fourth Circuit) reversed, holding that Congress could not rely on the IP Clause to
abrogate state sovereign immunity in light of Florida Prepaid, and that the CRCA swept too broadly to be
valid legislation to enforce the Fourteenth Amendment. The Supreme Court granted certiorari in Allen v.
Cooper on June 3, 2019.
The Decision in Allen v. Cooper
Justice Kagan wrote the opinion of the Court, which five other Justices joined in full. The opinion’s
analysis closely tracks that of Florida Prepaid, which the Court states “all but prewrote” its decision in
Allen. First, the Court held that Congress lacked power to abrogate state sovereign immunity in copyright
suits under the IP Clause, concluding that Florida Prepaid was controlling on this point as a matter of
stare decisis. Given that the IP Clause covers “copyrights and patents alike,” if the Clause could not
sustain the Patent Remedy Act, then it cannot support the “copyright equivalent” of the CRCA, “and for
the same reason.” The Court roundly rejected the notion that Katz disturbed Florida Prepaid’s analysis on
Article I abrogation, concluding that “everything in Katz is about and limited to the Bankruptcy Clause”
and the “‘singular nature’ of bankruptcy jurisdiction.”
Second, the Court concluded that Congress did not validly abrogate state sovereign immunity under
Section 5 of the Fourteenth Amendment, which grants Congress the power to legislate to prevent and
remedy due process violations by the states. The Court found that, in enacting the CRCA, Congress had
neither identified a sufficient pattern of unconstitutional copyright infringements by the states nor tailored
the CRCA’s remedies to actual constitutional violations. Specifically, the congressional record supporting
the CRCA identified no more than a dozen state copyright infringements, most of which were not
“willful” in nature—and therefore did not violate the Due Process Clause. Moreover, the legislative
record contained “no information” about the availability of state law remedies that could alleviate any due
process violation. Justice Kagan’s opinion suggested, however, that the result in Allen “need not prevent
Congress from passing a valid copyright abrogation law in the future,” if supported by an adequate
legislative record and sufficiently tailored to unconstitutional copyright infringements by states.
Justice Thomas wrote separately to note his more limited view of stare decisis and to question whether
copyrights are “property” under the Due Process Clause, but otherwise joined most of Justice Kagan’s
opinion. Justice Breyer, joined by Justice Ginsburg, concurred only in the judgment on stare decisis
grounds. Justice Breyer agreed that Florida Prepaid controlled the case, but expressed his “longstanding”
view that the Court had erred in Florida Prepaid and other state sovereign immunity cases.
Implications for Congress
As a practical matter, the most direct effects of Allen v. Cooper are for copyright holders and users of
copyrighted works. Amici that supported Allen feared that a decision upholding state sovereign immunity
would increase uncompensated use of copyrighted works by states and their instrumentalities, such as
state universities, harming the creators of those works economically, and undermining the incentives to
create provided by copyright protection. Justice Breyer raised this concern at oral argument, musing about
whether states could use their immunity to copyright suits to raise funds by setting up a website to show
Hollywood movies online, without compensation to copyright holders.
It is far from clear that such fears are any more than hypothetical, however. Amici that supported North
Carolina, for their part, maintain that practical, political, and institutional constraints will prevent states

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from abusing their sovereign immunity. On the contrary, they argue, the state immunity from copyright
suits clearly established in Allen may benefit the public by facilitating the public mission of state
universities and libraries, who are now freer from fears of copyright liability.
The broader legal effects of Allen relate to the scope of Congress’s power to abrogate state sovereign
immunity. Prior to the decision, whether Katz unsettled the basic legal principle of Seminole Tribe (i.e.,
that Article I powers cannot be used to abrogate state sovereign immunity) was unclear. Allen firmly
establishes that Katz’s holding is limited to the bankruptcy context, and that the Court will not engage in
the sort of “clause by clause” Article I analysis that the petitioners in Allen had urged. Allen is also
notable in that it appears that all nine Justices now accept Seminole Tribe as settled precedent, even
though a substantial minority of Justices (some still on the Court) was “not yet ready to adhere” to the
decision less than two decades ago.
To the extent that Congress disagrees with the outcome of Allen v. Cooper, it could seek to enact new
abrogation legislation more narrowly tailored than the CRCA. Allen keeps open the Fourteenth
Amendment as a source of abrogation authority, subject to the fact-specific “congruence and
proportionality” test. The Court’s analysis in Allen suggests that such legislation would stand a greater
chance of surviving constitutional scrutiny if (1) the supporting legislative record demonstrates a
substantial “history and pattern” of intentional, unremedied state copyright infringement; and (2) the
remedy is limited (or, at least tailored more closely) to intentional, unremedied state copyright
infringement.

Author Information

Kevin J. Hickey

Legislative Attorney

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