On November 5, 2019, the U.S. Supreme Court will hear oral arguments in Allen v. Cooper, a case that will determine whether states are immune from monetary damages for copyright infringement claims.
In 2015, videographer Frederick Allen and his production company Nautilus Productions sued the State of North Carolina for unauthorized use of their copyrighted videos and photos of an 18th-Century shipwreck. Although the parties had previously reached a settlement, the dispute was revived after the State continued to use Allen’s copyrighted works without compensation. To make matters worse, the State passed a law making all photographs and video material of shipwrecks in custody of North Carolina public record and available for public use without limitation, an action which Allen claimed was a bad faith effort to create a defense to the infringement claim.
In Count I of the lawsuit, Allen argued that the NC law was preempted by federal copyright law, and that it violates the Takings and Due Process clauses of the Constitution. In Count II, Allen alleged copyright infringement. The State moved to dismiss the case, asserting sovereign immunity under the Eleventh Amendment, which precludes individuals from suing states in federal court. Allen argued that Congress abrogated State sovereign immunity for copyright infringement claims when it enacted the Copyright Remedy Clarification Act (CRCA) in 1990.
The Eastern District of North Carolina agreed with Allen and denied North Carolina’s motion to dismiss in 2017. But North Carolina appealed, and the Fourth Circuit reversed in a July 2018 decision. Allen appealed, and the Supreme Court granted certiorari to review the case on June 3, 2019.
In the arguments to be presented, the parties will each weigh in on whether the CRCA validly abrogated state sovereign immunity under either Congress’ Article I powers or Section 5 of the Fourteenth Amendment. The Copyright Alliance filed an amicus brief arguing that Congress passed the CRCA “to promote the goals of copyright and to remedy a due process harm”, and that it did so consistent with both its Article I power and Section 5 of the Fourteenth Amendment.
Congress recognized that allowing States to infringe copyrights with impunity undermines the basic objectives of copyright law — to reward authors for their creative labor and incentivize artistic creativity. Our brief highlights numerous cases of State copyright infringements. These cases include unauthorized uses or distribution of books, journal articles, music, photos, audiovisual works, and computer programs. There would likely be many more cases involving State infringement, but unfortunately many of the infringement activities are difficult to trace. If States are granted immunity, copyright owners, particularly small businesses and individual creators, will suffer immediate harm from the inability to assert their rights and protect their works against states who abuse infringe.
As the highest court in the land, the Supreme Court’s decision in this case is of tremendous importance. If the court rules in favor of the State, states will have unbridled ability to infringe copyright with impunity. It is important that both state and private entities are held accountable for infringement, and that the law does not incentivize infringement or otherwise undermine the purpose of copyright law by granting states a free pass, despite the long history of infringement by states.