States Given Carte Blanche On Copyright Infringement, For Now

Are states completely immune from federal copyright infringement actions brought by individuals? That question was just answered by the U.S. Supreme Court in the case of Allen, et al. v. Cooper, Governor of North Carolina, et al.

Frederick Allen recorded videos and captured photographs of a shipwreck off the coast of North Carolina. He registered those works as copyrights. Later, the State of North Carolina published some of Allen’s videos and photographs online, which led to Allen filing a lawsuit for copyright infringement.

North Carolina moved to dismiss Allen’s lawsuit on grounds of sovereign immunity, and Allen responded in opposition, referencing the Copyright Remedy Clarification Act of 1990, which was an act by Congress to clarify that states are subject to suit in federal court by any person for copyright infringement.

Allen prevailed on the motion to dismiss. However, on appeal, the Fourth Circuit reversed the lower court’s opinion and determined that it was improper for Congress to interfere with the states’ sovereign immunity rights.

The U.S. Supreme Court’s holding is that Congress did not have authority to remove the states’ immunity from copyright infringement suits. The highest court made reference to the case of Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, et al., which deemed that the Patent Remedy Act, similar to the Copyright Remedy Clarification Act of 1990 but in releation to patents, improperly sought to interfere with states’ sovereign immunity. Additionally, in that case, it was found that Congress was not reacting to a pattern of patent infringement when it enacted the Patent Remedy Act. The Supreme Court found the same to be true concerning the circumstances surrounding the initial passage of the Copyright Remedy Clarification Act of 1990, at issue in Allen.

Could Congress pass a law similar to the Copyright Remedy Clarification Act in the future, providing individuals with the right to sue states in federal court for copyright infringement? The Supreme Court answered affirmatively. However, Congress would need to approach the issue differently than it did in 1990 when it passed the Copyright Remedy Clarification Act.

Should Congress wish to provide individuals with a right to sue states for copyright infringement, then it would need to “link the scope of its abrogation to the redress or prevention of unconstitutional injuries — and of creating a legislative record to back up that connection.” If there is a sincere concern that states are acting as copyright pirates, and the pirating is well documented, then Congress is given the right, by way of the Supreme Court’s opinion, to pass legislation to effectively stop states from acting in that manner.