In June 2019, the United States Supreme Court granted certiorari in Allen v. Cooper, No. 18-877. The case presents a question "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." Plaintiffs filed their Opening Brief in August 2019.

Since 1998, plaintiffs, Frederick Allen, and his production company Nautilus Productions (collectively, Allen), have been the exclusive photographers of the shipwreck of Queen Anne's Revenge, the flagship of Edward Teach, better known as Blackbeard the pirate. Coincidentally, the ship was named for the Queen Anne, who gave royal consent to the Statute of Anne, the first British copyright act. Allen registered his photographic works with the U.S. Copyright Office.

In 2013, Allen alleged that the State of North Carolina (the State) posted online his copyrighted works without his consent. The parties entered into a settlement agreement, requiring the State to compensate Allen for the prior infringement. Subsequently, Allen discovered the State continued to use his copyrighted works and accused it of breaching the settlement agreement. In response, the State passed a law making all photographs and video material of shipwrecks in custody of North Carolina public record and available for use without limitations.

Allen sued the State in district court for copyright infringement. The State moved to dismiss, arguing that the suit was barred by sovereign immunity and that Congress had exceeded its constitutional authority in enacting the Copyright Remedy Clarification Act of 1990 (CRCA), which purports to abrogate state sovereign immunity for copyright infringement claims.  The district court held that the CRCA validly abrogated the State's sovereign immunity from suit and that such an abrogation was congruent and proportional to a clear pattern of states' abuse of the copyright held by their citizens. The Fourth Circuit reversed, holding that the CRCA did not validly abrogate the State's sovereign immunity.

In its Opening Brief, Allen starts by arguing that Congress validly exercised its powers under the Intellectual Property Clause in enacting the CRCA. It asserts as follows:

The Intellectual Property Clause expressly empowers Congress to "secur[e] … to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8.  Allen explains that Congress could not "secur[e]" authors and inventors' "exclusive Right" to their works if Congress was powerless to hold States liable when and if they infringe. Allen relies on the clause by clause analysis outlined by the Supreme Court in Central Virginia Community College v. Katz, 546 U.S. 356 (2006) (Katz) and concludes that the Intellectual Property Clause supplies singular warrant for Congress to abrogate state sovereign immunity so that Congress may secure the uniform, nationwide copyright protection required to "promote Progress of Science and useful Arts."

Allen contends that although immunity from suit is a fundamental aspect of the sovereignty, compelling evidence demonstrates that States surrendered their immunity from copyright liability as part of the plan of the Constitutional Convention.  First, Allen argues, that the plain text of the Intellectual Property Clause evidences the waiver. Allen explains that the active verb "secure" means, "to protect, insure, save, [and] ascertain."  It follows, that to "secur[e]" authors' copyrights, Congress must be able to “put [them] beyond hazard" and protect them from any intrusion. Similarly, by referring to the property rights that exist in creative works as "exclusive Right[s]," the Intellectual Property Clause denotes that those rights are to belong solely to the copyright holder, who may "enjoy [them] to the exclusion of others." Allen concludes that, accordingly, the Framers left no doubt that Congress was to grant and protect creators' exclusive rights over their intellectual property and any notion that States would retain their own sovereign authority and immunity to infringe upon federally-conferred copyrights is incompatible with Congress's express power to secure copyrights, as to which authors are to hold exclusive rights.

Allen also argues that, in addition to the text of the Intellectual Property Clause, Congress's enactment of the Copyright Act of 1790 and the history of the Intellectual Property Clause evidence that the Framers viewed the Clause as effectuating a waiver. The Copyright Act of 1790 launched a uniform national system and such uniformity could have not been achieved unless the intellectual property rights conferred by Congress were enforceable against all infringers, including States. Additionally, Allen contends, the history of the Intellectual Property Clause at the Constitutional Convention indicates that States agreed to waive sovereign immunity under the Plan of the Convention. Specifically, the Intellectual Property Clause was passed unanimously, indicating there was a general agreement on the importance of authorizing a uniform federal response, which obviated any question or concern about whether States should be yielding to federal control and authors' exclusive rights within this realm.

Further, Allen points out, it is not plausible that the Framers were unconcerned about the threat that governmental overreach would pose to the exclusive intellectual property rights Congress had the responsibility to protect. The Framers were concerned about protecting the rights of private citizens against intrusion by the government, as evidenced by the amendments III (quartering), IV (search and seizure), and V (takings). Consequently, Allen argues, it is implausible that the Framers would let the government infringe upon citizens' intellectual property rights without liability. Allen concludes that leaving States free to violate those federal rights while disabling Congress from protecting them would be antithetical to the constitutional structure and conception—allowing States to intrude upon and upset a unique federal scheme for securing exclusive rights to creators to encourage and reward their efforts.

Allen also argues the Supreme Court's prior decisions do not foreclose congressional reliance on the Intellectual Property Clause to abrogate States’ sovereign immunity. Specifically, Allen relies on the Katz holding that the proper analysis of Congress's abrogation authority under Article I proceeds clause by clause (Katz, 546 U.S. at 363).

In Katz, the Supreme Court rejected the notion that Article I is incapable of giving rise to the power to abrogate sovereign immunity and explained that the Court is “not bound to follow dicta in a prior case in which the point now at issue was not fully debated.” Therefore, Allen concludes, that Katz supersedes Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1995) (holding that Congress lacked power under the Indian Commerce Clause of the U.S. Constitution to subject States to suit in federal court for violations of federally created rights) and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999) (holding that that Congressional efforts to abrogate state sovereign immunity for patent infringement were unavailing). Allen further concludes that once the Intellectual Property Clause is understood as empowering Congress to abrogate sovereign immunity, there should be no doubt that the CRCA reflects a valid exercise of that power.

Separately, Allen argues the Fourteenth Amendment also gave Congress the power to allow copyright owners to sue States. Section 5 of the Fourteenth Amendment imbues Congress with "power to enforce, by appropriate legislation, the provisions of this article," including the clause prohibiting States from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. Allen explains that rights to intellectual property are no less cognizable and protected under the Fourteenth Amendment than rights to other property are—and unlawful deprivations by the government no less warrant remedy. He concludes that, therefore, it was well within the Legislature’s prerogative to furnish legislative remedy, i.e., the CRCA.

Allen notes, the House Report supporting the CRCA expressly noted that, through unchecked state copyright infringement, States are injuring the property rights of citizens. Allen contrasts that with the Patent Remedy Act at issue in Florida Prepaid, where the legislative record did not reveal any pattern of patent infringement by the States.  Conversely, CRCA is cut from a different legislative cloth and supported by a compelling record, including the Register's Report, the testimony at the Hearing, and specific examples of growing copyright infringement by States. This record, Allen concludes, demonstrates that in enacting the CRCA, Congress sought to remedy a pattern of fourteenth amendment violations.

Finally, Allen argues that given the limited, discrete, and targeted nature of copyright liability, the remedy afforded by Congress in the CRCA represents a congruent and proportional response to State's copyright infringement.

Following the filing of the Opening Brief, thirteen amici filed briefs, twelve supporting Allen and one supporting neither party. We will continue to follow proceedings in this matter on this blog.