I Can Do What I Want - What Are The Limits to State Immunity in the US on Copyright Infringement?

Many national governments, and indeed US states, have particular immunities when it comes to their legal liability. In the UK, for example, the Crown has sovereign immunity from civil claims, which prevents the Crown from being sued by individuals or companies (to put things very simplistically). Similar legislation exists in the US, and there have been efforts to pass legislation to stop the immunity held by States. With this in mind, what is the extent of this immunity with regards to copyright? Can States simply infringe copyright without any regard to the copyright holders, or would they have to face some accountability? Luckily the Supreme Court recently took on this case and handed down its judgment late last month.

The case of Allen v Cooper concerned videos and photographs taken by Mr Allen for the company Intersal Inc., which discovered the shipwreck of the Queen Anne's Revenge (the famous ship owned by the pirate Blackbeard) in 1996 outside of the coast of North Carolina. The wreck, under both federal and state law, belongs to North Carolina. Mr Allen documented the recovery operation over the course of a decade and registered the copyright in those works. The State of North Carolina then published some of Mr Allen's videos and photographs in 2013 on its website, to which Mr Allen objected to. The parties agreed on a settlement of the initial dispute, however, Mr Allen then alleged further infringements by the State through the publication of five of his videos online and in a newsletter. Subsequently, he sued the State for copyright infringement, with the matter ending up with the Supreme Court.

Generally, a federal court generally may not hear a suit brought by any person against a non-consenting State, although this bar is not enshrined in the US Constitution. However, the courts have allowed suits to be brought if two conditions are fulfilled: (i) Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit; and (ii) some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. In short, if there is legislation that repeals the States' immunity, which is permitted by the US Constitution, the suit can be brought against the State in question.

As set out by Justice Kagan (handing down the majority's decision), there is no question that the first requirement has been fulfilled. The Copyright Remedy Clarification Act of 1990 removed the States’ sovereign immunity in copyright infringement cases, and therefore it is possible, pursuant to Constitutional approval, that States could be sued for copyright infringement. The remaining question is whether Congress has the authority to pass the legislation.

After a very thorough discussion of the previous cases dealing with State immunity, the Supreme Court noted that Mr Allen will not be able to overcome the precedent set, where States cannot be sued for copyright infringement as matters stand.

The Court then moved onto discussing section 5 of the Fourteenth Amendment to the Constitution, which, can authorize Congress to strip the States of immunity. The abrogation has to be "appropriate" under section 5, which means that the abrogation must be "tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohibitions". Furthermore, the courts have held that the appropriate test for section 5 is that "...must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end" - to put differently, the courts have to consider both the nature and the extent of state conduct violating the Fourteenth Amendment.

Justice Kagan decided that the issue of copyright infringement didn't pass the above test. In the Court's view, the infringement of copyright by States is not a prevalent issue (consisting of only 12 cases), which left the balancing of the stripping of States immunity askew and not proportionate to the injury posed by State infringement. The Court did, however, leave the door open for Congress to pass laws in the future to abrogate States' immunity with regards to copyright infringement.

Ultimately, the Supreme Court dismissed Mr Allen's case and ruled that section 5 of the Fourteenth Amendment does not support the abrogation of States' immunity with regards to copyright infringement, and Mr Allen could not bring his infringement case against the State forward.

State or sovereign immunity cases don't come across very often, and it is always interesting to see the extent to which the courts will protect that immunity. The Court's approach to the proportionality of the possible injury with the stripping of the entire immunity seems sensible in this instance since governments should be given broader protections lest we see the dams break and a wave of cases being brought against States or governments. They shouldn't, by any means, be given carte blanche to do as they wish, but the stripping or specific immunities will need thorough and appropriate consideration in the future.