Civil and Human Rights

Allen v. Cooper

In Allen v. Cooper, the Supreme Court is considering whether Congress validly abrogated state sovereign immunity from copyright suits in the Copyright Remedy Clarification Act.

Case Summary

Since 1998, petitioners Frederick Allen and his production company Nautilus Productions, LLC, have produced videos and images of the shipwreck of Queen Anne’s Revenge, the flagship of the infamous pirate Blackbeard, and they have registered those works with the U.S. Copyright Office.  In 2013, petitioners alleged that North Carolina infringed those copyrights by posting their works online without their permission.  North Carolina reached a settlement with petitioners and agreed not to violate their copyrights in the future.  Petitioners allege, however, that North Carolina continued to infringe their copyrights and that it even passed a state law declaring their works matters of public record.  In 2015, petitioners sued North Carolina for copyright infringement in federal district court.  North Carolina responded that the suit was barred by state sovereign immunity under the Eleventh Amendment and that Congress had exceeded its constitutional authority in enacting the Copyright Remedy Clarification Act of 1990 (CRCA), which purports to abrogate state sovereign immunity and render states subject to suit for copyright infringement.  The district court disagreed and denied North Carolina’s motion to dismiss the lawsuit.  The Fourth Circuit reversed, holding that the CRCA’s abrogation of state sovereign immunity was unconstitutional.  Petitioners then filed a petition for a writ of certiorari with the Supreme Court, which granted review in June 2019.

CAC filed an amicus brief in support of petitioners arguing that Congress validly abrogated state sovereign immunity in the CRCA, rendering North Carolina subject to suit for copyright infringement.  Our brief reminds the Court that Section 5 of the Fourteenth Amendment, by design, grants Congress broad authority to enact “appropriate legislation” to enforce that Amendment’s guarantees, and we explain that Section 5’s text and history confirm the substantial breadth of Congress’s enforcement authority.  We argue that Congress’s decision to abrogate state sovereign immunity in the CRCA falls well within that authority.  First, we argue that the CRCA validly abrogates state sovereign immunity insofar as it prohibits conduct that actually violates the Fourteenth Amendment, and petitioners have alleged such conduct in this case—the deprivation of their due process rights and the taking of their intellectual property without just compensation.  Second, and more broadly, we contend that the CRCA is constitutional across the board and that its validity is particularly clear in the class of cases involving states’ intentional copyright infringement.  In other words, the CRCA is a “congruent and proportional” response to a history of unconstitutional conduct by states that Congress sought to remedy and deter, as the Supreme Court requires for valid Section 5 legislation.  Finally, we argue that the Court should reject the suggestion that the CRCA is not valid legislation under Section 5 simply because Congress, in unequivocally stating its intent to abrogate state sovereign immunity, did not also specify that Section 5 was the basis for its abrogating authority.  Thus, we urge the Court to reverse the Fourth Circuit’s judgment and rule in favor of petitioners.

The case will be argued on November 5, 2019.

Case Timeline