Presented by John Goodhue
In an opinion by Justice Kagan, the Supreme Court held that the Copyright Remedy Clarification Act did not validly abrogate States' sovereign immunity from copyright-infringement suits. Congress lacked authority to abrogate under Article I's Intellectual Property Clause, because Florida Prepaid and Seminole Tribe establish that Article I cannot be used to circumvent sovereign immunity. And the abrogation was not a valid exercise of Section 5 of the Fourteenth Amendment because it was not congruent and proportional to any identified pattern of intentional, unconstitutional copyright infringement by the States. The Court left the door open to a future, more tailored statute supported by a proper legislative record. The judgment was unanimous, with separate concurrences by Justices Thomas and Breyer (joined by Justice Ginsburg).
Allen v. Cooper, decided March 23rd, 2020. The Supreme Court, unanimous in the judgment in an opinion by Justice Kagan, affirmed the Fourth Circuit and held that the Copyright Remedy Clarification Act of 1990 did not validly strip the States of their sovereign immunity from copyright-infringement suits. Congress lacked the constitutional authority to abrogate that immunity — neither under Article I's Intellectual Property Clause, nor, on this record, under Section 5 of the Fourteenth Amendment. Here's the brief.
In 1996, a marine salvage company discovered the wreck of the Queen Anne's Revenge — the flagship the pirate Blackbeard ran aground off North Carolina in 1718. Under federal and state law, the wreck belongs to North Carolina. The State contracted for the recovery, and the salvage firm hired Frederick Allen, a local videographer, to document the operation. For more than a decade, Allen filmed and photographed the divers' work, and he registered copyrights in all of it.
When North Carolina posted some of Allen's videos and photos online, he sued the State in federal court for copyright infringement. North Carolina moved to dismiss on the ground of sovereign immunity. Allen answered that Congress had abrogated that immunity in the Copyright Remedy Clarification Act — the CRCA. The District Court agreed with Allen. The Fourth Circuit reversed, reading this Court's decision in Florida Prepaid to bar abrogation under both Article I and Section 5. The Court granted cert and affirmed.
The question was whether Congress validly abrogated state sovereign immunity when it enacted the CRCA. A federal court may not hear a suit against a nonconsenting State unless two conditions are met: Congress must speak with unequivocal statutory language abrogating the immunity, and some constitutional provision must give Congress the power to do so.
No one disputed the first condition — the CRCA's text is unmistakable. The contested condition was the second: the source of Congress's power. Allen pointed to two possibilities — Article I's Intellectual Property Clause, or Section 5 of the Fourteenth Amendment, which lets Congress enforce the Due Process Clause.
The Court held that neither provision supported abrogation.
Article I could not, because Seminole Tribe and Florida Prepaid foreclose it. In Florida Prepaid, the Court had held that the nearly identical Patent Remedy Act could not use Article I's power over patents to remove state immunity. Patents and copyrights stand on the same footing under the Clause, and the two statutes are materially the same — so ruling for Allen would mean overruling Florida Prepaid, and stare decisis, absent a special justification, forbade that. Allen argued that a later bankruptcy decision, Central Virginia Community College v. Katz, opened a clause-by-clause path around the rule, but the Court read Katz as good for the Bankruptcy Clause alone — a product of that clause's unique history, not a general license.
Section 5 can authorize abrogation — but only through legislation congruent and proportional to a documented pattern of unconstitutional conduct. For copyright, that means intentional or reckless infringement that deprives an owner of property without due process. As in Florida Prepaid, the legislative record showed no such pattern: the evidence of state infringement was slight, and almost none of it was intentional. Yet the CRCA exposed every State to liability for every infringement. That imbalance failed the test.
Justice Thomas concurred in part and in the judgment, declining to join the Court's stare decisis discussion and its remarks on future legislation. Justice Breyer, joined by Justice Ginsburg, concurred in the judgment while restating his disagreement with the sovereign-immunity precedents the Court applied.
Allen v. Cooper leaves the States immune from copyright-infringement suits under the CRCA, and it confirms that Article I — the Intellectual Property Clause included — cannot be used to abrogate that immunity. But the Court was careful to leave a door open.
A future statute, tailored to a documented record of intentional state infringement, could validly abrogate immunity under Section 5. The holding rests on the record Congress built — not on any bar to legislating at all. In that sense, Allen v. Cooper is less a wall than a set of instructions to Congress.
Allen v. Cooper, 589 U.S. 248, decided March 23rd, 2020. I'm John Goodhue. Thanks for watching.
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