Edward Teach, more popularly known as Blackbeard, roamed the seven seas and terrorized merchant vessels off the U.S. and Caribbean coasts during the colonial period. He ultimately met his demise when the colony of Virginia breached the sovereignty of neighboring North Carolina and hunted him down along the shores of the Outer Banks. Three hundred years have since passed, and another case of state sovereignty arises as a result of the actions of Blackbeard, this time having to do with the wreckage of one of his vessels, the Queen Anne’s Revenge. The Supreme Court, in Allen v. Cooper, has come down on the side of protecting state sovereign immunity in dismissing a copyright infringement claim concerning video footage of Blackbeard’s ship.
To provide the legal context for the current dispute, in 1999, the Supreme Court in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), held that Congress could not use its power under Article I of the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries”—to abrogate state sovereign immunity protected by the 11th Amendment in a patent infringement case. Thanks to the 11th Amendment, states cannot be sued for patent infringement absent waiver. An open question since Florida Prepaid was whether this sovereign immunity jurisprudence would apply to a copyright infringement suit.
The case that finally provided an answer to this question began when a marine salvage company found the shipwreck of the Queen Anne’s Revenge in 1996 within North Carolina’s coastal waters, which meant that the wreck was the property of the State. The maritime salvage company retained videographer Frederick Allen to film footage and take photos of the wreckage, and Allen registered the copyright in his works. The State of North Carolina then used Allen’s footage without providing compensation. Allen sued, and North Carolina moved to dismiss on the basis of state sovereign immunity, arguing that Congress did not have the authority to compel states to answer for copyright infringement claims. Allen responded that Congress demonstrated a clear intent to abrogate sovereign immunity in enacting the Copyright Remedy Clarification Act of 1990, and that there was a constitutional basis for that abrogation.
The district court agreed with Allen, finding clear congressional intent to abrogate and a constitutional basis in the 14th Amendment, which prevents states from depriving individuals of property without due process of law. The district court distinguished Florida Prepaid, holding that the Court did not consider whether the 14th Amendment provided a basis to support abrogation.
The Fourth Circuit reversed, holding that Florida Prepaid foreclosed use of either Article I or the 14th Amendment as a basis to support abrogation of sovereign immunity.
The Supreme Court granted certiorari and affirmed the judgment of the Fourth Circuit. It held that Florida Prepaid continues to serve as a useful precedent for its sovereign immunity jurisprudence, and it compels a similar result with respect to copyright law. The Florida Prepaid court held that Article I did not supply a basis for abrogation of sovereign immunity with respect to patent claims. The Court concluded that the reasoning of Florida Prepaid compels the same result in Allen with respect to Article I power.
The Court also held that the 14th Amendment did not provide a basis to apply the Copyright Act to state conduct. The Court agreed that the 14th Amendment can apply to copyright infringement since the clause applies to deprivation of property, and copyright is a property right. The Court held, however, that applying to states the general prohibition on copyright infringement sweeps too broadly with respect to state conduct, covering not just intentional conduct but also negligent or even innocent infringement. The Court noted that negligent or innocent conduct by state actors historically has not been violative of the Constitution under the 14th Amendment. The Court also noted that the 14th Amendment does not support such a broad application of copyright law under the “congruence and proportionality” test because the statute is “indiscriminate” with respect to remedying copyright infringement and there is no Congressional record of past state infringing conduct that would give rise to such a sweeping remedy against state actors.
The decision was unanimous, with Justices Breyer and Ginsberg concurring in the judgment and Justice Thomas concurring in part and concurring in the judgment.
While the decision is hardly surprising in light of Florida Prepaid, the Court did offer an idea for regulation and enforcement. The Court suggests that a more narrowly tailored statute governing copyright infringement—and patent infringement, for that matter—that was supported by a stronger legislative record may pass muster under the 14th Amendment. One can imagine that the conduct covered under such a statute would be limited to intentional or willful conduct.
Absent new legislative action, what redress is available to the victim of state actor copyright infringement? A state court remedy? Many states allow tort claims against the sovereign under circumscribed conditions (e.g., no punitive damages, damages caps). Perhaps this can be a path forward in the absence of a federal remedy.