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SCOTUS Says States Cannot be Sued for Copyright Infringement (for Now)

By John DiGiacomo

The US Supreme Court recently issued its decision in Allen v. Cooper, 140 S.Ct. 994 (March 23, 2020) holding that States are immune from copyright infringement lawsuits. Under the 11th Amendment to the US Constitution, generally, States retain their sovereign immunity and Congress has no power to override that immunity. Sovereign immunity means that a state and all of a state’s subsidiary governmental and administrative units cannot be sued unless the state voluntarily waives its immunity. For example, in Michigan, the state has waived its sovereign immunity in some circumstances for acts of negligence committed by government employees. See MCL 691.1407.

Congress DOES have some limited ability to remove the sovereign immunity of states. Indeed, in 1990, Congress attempted just that with respect to copyright infringement by enacting the Copyright Remedy Clarification Act (“CRCA”). 17 U.S.C. § 511(a). However, as noted, the Supreme Court has struck down the statute as unconstitutional. The decision was unanimous, although the nine Justices used different reasoning to reach the unanimous result.

Under the copyright laws, a copyright owner has the exclusive right to use his or her original works of authorship. In general, if a person or entity uses another’s copyright-protected works without permission, then the copyright owner can sue for copyright infringement. Money damages and other types of relief are available. In general, that is what happened in the Allen case.

In 1996, the shipwreck of the Queen Anne’s Revenge was discovered off the North Carolina coast. The shipwreck’s legal owner, under various maritime laws, was the state of North Carolina. North Carolina hired a company to conduct the salvage and recovery operations. That company hired a videographer, Frederick Allen, to video and photograph the underwater efforts. Allen worked for more than a decade and registered copyrights for all of his videos and photographs. At some point, North Carolina published some of Allen’s videos and photos online and, then, Allen sued for copyright infringement. North Carolina defended the suit based on the state sovereign immunity doctrine. In response, Allen argued that the CRCA abolished state sovereign immunity with respect to copyright infringement claims.

The federal trial court agreed with Allen, but the US Court of Appeals for the Fourth Circuit reversed the trial court. The US Supreme Court affirmed the Fourth Circuit’s decision and struck down the CRCA.

That being said, the court DID leave the door open for Congress to enact a more narrowly tailored statute that would allow states to be sued for copyright infringement. The constitutional infirmity with regard to the CRCA was its broadness. To pass constitutional muster, the court stated that there must be a “proportionality” between what Congress is trying to prevent and the remedy chosen. In practice, this means that, likely, Congress has the power to waive a State’s sovereign immunity for only intentional, egregious or maybe reckless infringement of copyrights.

This is important to copyright owners because there are an immense number of state-level agencies, departments and divisions. Just consider the large number of state-operated colleges and universities with various branches and campus locations and tens of thousands of employees. Every employee at every one of those state-operated institutions can now use copyrighted materials with little concern for copyright infringement lawsuits.

If you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.

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