Irwin IP Case Of The Week

Supreme Court Says: States Maintain Sovereign Immunity for “Piracy”

Allen v. Cooper, No. 18-877, 2020 WL 1325815 (U.S. Mar. 23, 2020)

Lisa Holubar & Nick Wheeler

In an opinion by Justice Kagan, the Supreme Court recently held that the Copyright Remedy Clarification Act of 1990 (“CRCA”) did not validly abrogate States’ sovereign immunity for copyright infringement.[1]  The Supreme Court relied on its 1999 decision in Florida Prepaid;[2]which held that Congress could not use its powers under the intellectual property clause of Article 1, Section 8, Clause 8 of the Constitution nor Section 5 of the Fourteenth Amendment to abrogate States’ sovereign immunity for patent infringement cases in the Patent Remedy Act.

The Allen case involved videos and a photograph taken by Petitioner Frederick Allen of salvage operations of the Queen’s Anne’s Revenge, shipwreck of the infamous pirate Blackbeard.  Allen registered copyrights in the videos and photo he took.  North Carolina published some of Allen’s materials online.  Allen sued North Carolina for copyright infringement.  In the District Court, North Carolina moved to dismiss the case based on sovereign immunity.  The District Court agreed with Allen in that the text of the CRCA demonstrated a clear congressional intent to remove State sovereign immunity in copyright infringement cases.  The District Court justified this abrogation under Section 5 of the Fourteenth Amendment, which allows Congress to enforce the commands of due process, as the District Court recognized Congress could not abrogate under Article I in light of Florida Prepaid.  The Fourth Circuit reversed, finding that Florida Prepaid (holding Congress must have constitutional authority to abrogate the Eleventh Amendment’s state sovereign immunity and neither Article I, Section 8 nor Section 5 of the Fourteenth Amendment provides Congress constitutional authority to abrogate state sovereign immunity) prevented Congress from using either Article 1 or Section 5 of the Fourteenth Amendment. 

Like the Fourth Circuit, the Supreme Court rejected Allen’s Article I and Fourteenth Amendment arguments.  The Supreme Court noted that generally under the Eleventh Amendment a federal court may not hear a case brought by a person against a nonconsenting state, but a case may be heard if: (1) Congress has enacted “unequivocal statutory language” abrogating the States’ immunity from the suit and (2) if some constitutional provision allows Congress to encroach on the States’ sovereignty.  The Court agreed that Congress used clear language for abrogation in the CRCA.  But the Court found Congress did not have authority under the Intellectual Property Clause of Article I under the Court’s holding regarding the Patent Remedy Act of 1990 in Florida Prepaid, and there was no special justification to overturn that decision or treat copyrights differently than patents.  Allen’s argument under the Fourteenth Amendment also failed.  The Court found CRCA’s scope was “indiscriminate” and “out of proportion” to address any actual Fourteenth Amendment due process problem.  Specifically, despite a year-long effort to gather evidence of state copyright infringement examples in support of the CRCA, only 12 instances of such infringement were reported, many of them accidental or honest mistakes.

The Court left open, however, the possibility that Congress could pass a valid copyright abrogation law in the future, provided that the law is a proportionate response to an actual Fourteenth Amendment concern, as this is the only way to “stop States from behaving as copyright pirates.”


[1] Allen v. Cooper, No. 18-877, 2020 WL 1325815 (U.S. Mar. 23, 2020).

[2] Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).

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Contact the Authors

Name: Lisa Holubar Phone: (312) 667-6086 Email: lholubar@irwinip.com
Name: Nick Wheeler Phone: (312) 667-6285 Email: nwheeler@irwinip.com

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