Oral Arguments in Allen v. Cooper Pit Court Precedent Against Rising Tide of State Copyright Infringement

“Ultimately, there seems no practical justification for allowing state actors to infringe copyrights with impunity.”

Supreme Court Allen v. CooperThe Supreme Court heard oral argument in Allen v. Cooper (Case No. 18-877) on Monday, November 5, 2019. Petitioner Allen claims that the State of North Carolina infringed his copyrights in images and video of the salvage of Blackbeard’s famed pirate ship. Relying on the Copyright Remedies Clarification Act (CRCA), Allen seeks monetary damages against the State. The State argues, and many lower courts have agreed, that the CRCA is unconstitutional and state sovereign immunity precludes Allen from recovering copyright infringement damages against the State.

The Copyright Remedies Clarification Act

Enacted in 1990, the CRCA precludes states from defending against copyright infringement claims by asserting sovereign immunity. However, relying on the Supreme Court’s 1999 decision in Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999), many courts have found the CRCA unconstitutional. Florida Prepaid broadly construed Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) for the proposition that Article I of the U.S. Constitution (which sets out the structure, powers, and responsibilities of the legislative branch of the federal government) could not, as a matter of law, abrogate sovereign immunity. But ten years later, the Supreme Court’s decision in Central Virginia Community College v. Katz, 546 U.S. 356 (2006) interpreted Seminole Tribe differently:

We acknowledge that statements in both the majority and the dissenting opinions in Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. Careful study and reflection have convinced us, however, that that assumption was erroneous.

Central Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (emphasis added).

The Arguments

At oral argument, Allen’s counsel purported to offer the Court a path by which it could find the CRCA constitutional under Article I, but without overruling Seminole Tribe and Florida Prepaid. Yet counsel declined to adopt a definitive position on the state of the law following Katz, suggesting it may have overruled Florida Prepaid (Transcript of Oral Argument at 9:11-12, Allen v. Cooper, Case No. 18-877 (S. Ct. Nov. 5, 2019), or merely the basis for Florida Prepaid (Tr. 9:16-18), or the relevant portion of Seminole Tribe (Tr. 12:2-4). Ultimately, counsel deferred to the Court to “decide the status of its precedent” (Tr. 12:4-5).

While the Justices were skeptical of Allen’s Article I arguments based on traditional concerns of stare decisis and the force of the Court’s Florida Prepaid and Seminole Tribe decisions, they seemed willing to consider the CRCA a valid exercise of Congress’ enforcement powers under Section 5 of the Fourteenth Amendment. Though Justice Alito flatly stated that the 16 examples of copyright infringement by state actors in the CRCA’s legislative record were “not enough” (Tr. 17:4-5), a sentiment that Justice Kagan seemed to echo (Tr. 25:6-10), Justice Alito also raised what he termed an “interesting question under Section 5 of the Fourteenth Amendment[,]” which permits Congress to make laws to enforce other sections of the Fourteenth Amendment, including the prohibition on state laws that “abridge the privileges or immunities of citizens of the United States” or “deprive any person of life, liberty, or property, without due process of law. . . .” Specifically, Justice Alito stated:

When we have decided that the — the congressional record at the time of an enactment that attempts to rely on Congress’s Section 5 power is insufficient, and in subsequent years there are events that would have made the record a lot stronger, what does that do to the decision? Does that –does that mean that it’s — it’s subject to reexamination based on what has happened after that point? So why should we look at events that occurred after the enactment of this?

(Tr. at 29:4-17.)

Justice Kagan echoed this question during the State’s arguments, stating that she believed Congress could pass prophylactic legislation, and that the CRCA might qualify as such. (Tr. 47:5-14.) The State argued that such prophylactic legislation would violate City of Boerne v. Flores, where the Court struck down the federal Religious Freedom Restoration Act of 1993 because it legislatively overruled the Court’s interpretation of a constitutional right in Employment Division v. Smith and encroached on the judiciary’s authority under separation of powers principles. Yet City of Boerne leaves room for Section 5 legislation that “deters” as well as “remedies” constitutional violations,” City of Boerne v. Flores, 521 U.S. 507, 518 (1997), as well as measures that “prevent unconstitutional actions,” id. at 519, which counsel for Allen noted during oral argument. (Tr. 18:23-25.)

Moreover, the Justices’ questioning of the State’s counsel seemed to indicate that at least some of the Justices have grave concerns over a rule that would endorse routine willful infringement by state actors insulated by sovereign immunity:

JUSTICE BREYER: What the state decides to do with its own website, charging $5 or something, is to run Rocky, Marvel, whatever, Spider-Man, and perhaps Groundhog Day, all right?  Now, great idea. Several billion dollars flows into the treasury. Okay? Now, if you win, why won’t that happen?

(Tr. at 36:17-37:2.)

Interestingly, Allen referenced amici arguments that, under United States v. Georgia, 546 U.S. 151 (2005), such egregious, willful infringements could be remedied as direct constitutional violations, a point that counsel for the State essentially conceded with the caveat that there must be no alternative remedy. (Tr. at 40:25 to 41:18). Thus, the parties seemed to agree that the CRCA would be constitutional in at least some cases.

Possible Outcomes

To prevail, Allen’s Article I arguments must overcome the Court’s deference to its precedent, a concern plainly revealed by the Justices’ questioning. In view of Seminole Tribe, which itself overruled Pennsylvania v. Union Gas, 491 U.S. 1 (1989), the Court may find that Katz is an exception to the rule espoused in Seminole Tribe, which may be more palatable than changing course on an issue that has remained in flux at least since Union Gas was overruled.

That said, there is good reason to believe that Florida Prepaid has already been significantly eroded by Katz, and accordingly, the 5-4 decision in Florida Prepaid may be ripe for reversal. Indeed, counsel for the State admitted that the reasoning of Florida Prepaid had been “undercut” by Katz. (Tr. 61:21-23). And of the five justices in the Florida Prepaid majority, only Justice Thomas remains on the Court, along with two of the four dissenters in that case, Justice Ginsburg and Justice Breyer.

While Allen’s Fourteenth Amendment arguments may fare better, those arguments will also face significant challenges given the relatively sparse legislative record of 16 instances of infringement. And though the Court touched on the issue of whether prophylactic legislation might pass muster under Section 5, it is unclear whether the Court will read Boerne v. City of Flores to have required Congress to engage in the kind of inquiry that identifies a widespread pattern of strictly constitutional violations, rather than adopt legislation based on a few examples of infringement and concerns over a perceived future threat.

Ultimately, there seems no practical justification for allowing state actors to infringe copyrights with impunity. Such practical considerations may factor into the Court’s decision should it find that the CRCA is not unconstitutional on its face, which it can do while still leaving the door open to as-applied challenges.

The Author

Margaret Esquenet

Margaret Esquenet is a Partner at Finnegan. Her work focuses on contemporary issues in U.S. and global copyright, advertising, and trademark law. She leads litigation teams defining the scope of copyright protection, trademark infringement, and advertising substantiation on traditional and emerging platforms. She provides legal counsel across all media, in all facets of branding, advertising, and marketing. Margaret is experienced in First Amendment and media rights and has been tapped as an intellectual property legal expert for National Public Radio and Bloomberg BNA stories.

For more information or to contact Margaret, please visit her Firm Profile Page.

Margaret Esquenet

Samuel Eichner is an attorney at Finnegan. His practice focuses on copyright and trademark litigation and enforcement, and also includes counseling, transactions, and prosecution.

For more information or to contact Samuel, please visit his Firm Profile Page.

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  1. Anon November 11, 2019 5:09 pm

    I am curious as to how the recent “Sovereign Immunity” cases in regards to Tribe and States (since the Wisconsin case simply followed and applied the Tribal Immunity case) intersect with this</b question of Sovereign Immunity.

    It would seem most odd to say that States HAVE Sovereign Immunity in one aspect, but that for another aspect Sovereign Immunity does not reach.

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