Supreme Court Holds States Are Immune from Copyright Infringement Claims

The Supreme Court handed down its unanimous decision in Allen v. Cooper this week, finding the Copyright Remedies Clarification Act (CRCA) was an unconstitutional abrogation of state sovereign immunity. In rejecting Allen’s arguments under both Article I and the Fourteenth Amendment of the U.S. Constitution, the decision relied heavily on Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999), which “all but prewrote [the Court’s] decision.” Nonetheless, the Court also left the door open for Congress to more narrowly abrogate state immunity for copyright infringement in a way that potentially comports with the Constitution.

The opinion, penned by Justice Kagan, began by rejecting Allen’s argument that the CRCA validly abrogated state sovereign immunity under Article I, Section 8 of the Constitution (the copyright and patent clause). Simply, the Court found that “[t]he problem for Allen is that this Court has already rejected his theory,” emphasizing that Congress’ Article I power over patents and copyrights comes from the same “Intellectual Property Clause” that the Court in Florida Prepaid had already found did not abrogate state sovereign immunity. The Court’s finding in Florida Prepaid relied on a rule established in Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996): Congress may not use its Article I power to abrogate state sovereign immunity.  

Allen’s efforts to distinguish Florida Prepaid relied on Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006), which held that the Article I Bankruptcy Clause was the exception to the rule established by Seminole Tribe and applied in Florida Prepaid. Thus, Allen’s argument forced the Court to address Katz and its tension with Seminole Tribe.  This led the Court to distinguish the Katz decision as one of “bankruptcy exceptionalism,” warranted by the “singular nature of bankruptcy jurisdiction,” and the notion that the Bankruptcy Clause was “sui generis” among Congress’ Article I powers.  Rejecting the “clause-by-clause” approach to Article I abrogation that Allen claimed was the result of Katz, the Court limited Katz to its facts, and clarified that Katz was “a good for-one-clause-only holding.”

Ultimately, the Court reasoned that a finding for Allen on Article I abrogation based on the Intellectual Property Clause could not be squared with Florida Prepaid, and would require the Court to overrule that decision. Yet because there was no “special justification” to overrule Florida Prepaid, thereby eroding the Court’s precedent, it declined to do so.

In addressing Allen’s second argument—that the CRCA was a valid exercise of Congressional power under Section 5 of the Fourteenth Amendment—the Court concluded:

When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from ‘depriv[ing]” a person of property “without due process of law.’ But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of property.

In doing so, the Court reasoned that only intentional or reckless infringement, and not merely negligent infringement, could rise to the level of a constitutional deprivation of property permitting Congress to invoke Section 5 of the Fourteenth Amendment. Accordingly, the Court again found that Florida Prepaid controlled the outcome in this case. Specifically, Florida Prepaid had rejected a similar argument in support of a similar law based on a legislative record that was similarly deficient in that it failed to identify a robust pattern of unconstitutional, i.e. non-negligent infringement. 

Even so, and recognizing the injustice that might result from a decision that allowed state-sponsored infringement to flourish, the Court left the door open to future legislation that might abrogate state sovereign immunity based on the Fourteenth Amendment. The Court explained that, when Congress passed the CRCA, it did not have the benefit of the Court’s decision in Seminole Tribe, on which Florida Prepaid relied. Now armed with that decision and awareness of “the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection,” the Court reasoned that Congress potentially could validly legislate to stop the states from behaving as “copyright pirates.” 

Justice Breyer wrote a concurring opinion joined by Justice Ginsburg. Interestingly, the concurring opinion arguably reads more like a dissent, maintaining that the Court “went astray in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996)” and “erred again in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999).” Nonetheless, Justices Breyer and Ginsburg joined the Court’s judgment, acknowledging that “their longstanding view has not carried the day” and that the faulty precedent controls.

Justice Thomas also concurred in a separate opinion taking issue with the majority’s “special justification” standard for overruling the Court’s precedent, its endorsement of future Fourteenth Amendment abrogation legislation, and its acknowledgement that copyrights could qualify as property deprived thereunder.

The case is Allen v. Cooper, No. 18-877, Slip Op. (S. Ct. March 23, 2020)