Can states pirate works without paying? The potential grounds for abrogation of state sovereign immunity in copyright

Of all the matters before the U.S. Supreme Court this term, this Kat is anxiously awaiting an opinion in one pirating case: Allen v. Cooper. The case concerns the validity of the Copyright Remedy Clarification Act (CRCA) (1990), a bill that abrogates state sovereign immunity with respects to copyright infringement. The question before the Court is whether or not Congress has the power - as the federal legislature - to abrogate state sovereign immunity. Here are several of the potential grounds that the Court may consider for valid abrogation:


Blackbeard the Pirate
Fredrick Allen is the sole photographer and videographer of the Queen Anne's Revenge shipwreck; the ship was captained by pirate, Blackbeard, and sunk off the coast of North Carolina in 1718. Allen found infringement on websites hosted and operated by the State of North Carolina in 2013; the state settled, promising to pay royalties and provide attribution on all future uses. The infringement continued however, leading to the current litigation.

In 2015, the state further pressed the issue by enacting Blackbeard's Law; this law made “all photographs, video records, or other documentary materials of a derelict vessel or shipwreck, [and] relics, artifacts or historic materials in state custody" public records, exempted from copyright protection.

The Eastern District of North Carolina ruled that Allen was entitled to sue the state for money damages, but the Fourth Circuit Court of Appeals overruled that decision. Now, the case is before the Supreme Court to determine the validity of Congress' abrogation of state sovereign immunity under the CRCA.

State Sovereign Immunity

Sovereign immunity with respect to states in the US is of a two-fold nature; states have immunity concerning state laws through their sovereign status, while states hold sovereign immunity with respect to the federal system through the 11th Amendment. That provision of the constitution reads, 
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
In the Hans v. Louisiana (1890) decision, the Court determined that the 11th Amendment maintained state sovereign immunity in federal courts where state laws were at issue, but abrogation with respect to federal laws would not be addressed for nearly 100 years. In Pennsylvania v. Union Gas (1989), the Court held that Congress could abrogate state sovereign immunity under its Article 1 Commerce Clause Power. Following that case, Congress passed several statutes abrogating state sovereign immunity; these laws concerned a variety of powers granted to Congress under Article 1 of the Constitution, including patents, copyrights (through the CRCA), and the regulation of commerce with "the Indian Tribes."

Rise of the 11th Amendment

In Seminole Tribe of Florida v. Florida (1996) - a case concerning abrogation of state sovereign immunity through a federal law regulating commerce with "the Indian Tribes" - a 5-4 majority of the Court held that Congress lacked the authority to abrogate state sovereign immunity under the Commerce Clause with regard to "the Indian Tribes"; the majority further stated that no Article 1 power could serve alone as the basis for the abrogation of state sovereign immunity. 

The next year, the Court tightened the requirements for such abrogations under the only valid basis, Section 5 of the 14th Amendment. In City of Boerne v. Flores (1997), the Court ruled that this broad power grant to secure the constitutional rights of the citizens against state violation could only serve as a basis for abrogation if three elements were shown:

  1. Constitutional violation by a state
  2. A pattern of such violations
  3. That the remedial action enacted by Congress was congruent and proportional to the wrong
The Court has since applied this standard retroactively toward legislation passed before the Boerne ruling.

Considering abrogation in the patent context, the Court did not explore the potential of an Article 1 basis in Florida Prepaid (1999); the Court pointed to the broad statement against Article 1 abrogation as the sole basis to turn to a Section 5 of the 14th Amendment analysis, which also failed to persuade the Court. Holding the legislature to a standard that had not emerged at the time of legislation, the Court ruled that Congress lacked the power to abrogate state sovereign immunity in the patent context.

Katz: The Pendulum Swings

The Court changed course in Central Virginia Community College v. Katz (2006), finding valid abrogation of state sovereign immunity in the bankruptcy context under Article 1 congressional authority. The sweeping statement against Article 1 abrogation of Seminole Tribes was labeled "erroneous" and "dicta" which the Court was not bound to follow. In finding valid Article 1 abrogation, the Court relied upon the concept of a "plan of the convention waiver" whereby state governments intended to waive state sovereign immunity in certain aspects through ratifying the constitution. 

This Kat certainly seems sovereign
The plan of convention concept stems from the Federalist papers; in Federalist 81, Alexander Hamilton notes the intention of the federal system is to allow for abrogation of state sovereign immunity where state sovereignty is alienated by the constitution. The grounds for alienation - and, by extension abrogation - are enumerated in Federalist 32:

1. where the Constitution in express terms granted an exclusive authority to the Union;
2. where it granted in one instance an authority to the Union, and in another prohibited    the States from exercising the like authority; and
3. where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.
Hamilton explains "contradictory and repugnant" in Federalist 32, drawing a distinction between those Article 1 powers requiring uniformity (such as naturalization) and those where concurrent sovereignty is germane (such as taxation).

The Court in Katz explored the historical context of bankruptcy as an in rem jurisdictional matter, as well as the intent for uniformity, exclusivity in federal jurisdiction, and state participation. Finding an intent for uniformity in the constitutional text and the historical context, as well as noting exclusive federal court jurisdiction and state participation in bankruptcy matters, the Court ruled that Article 1 served as a valid basis for Congress to abrogate state sovereign immunity in bankruptcy.

Grounds for Abrogation

The holding of Katz teaches that Article 1 may be the basis of valid abrogation of state sovereign
immunity by Congress if it was in the plan of the convention for states to waive their immunity. Additionally, there is a strong case for valid abrogation under Section 5 of the 14th Amendment, in three different respects.

Article 1 - Plan of Convention Waiver

Article 1, Section 8, Clause 8 of the Constitution provides Congress the power to regulate copyrights:
"The Congress shall have Power ... 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"
While this power grant does not fit within the first or second category of  alienation of state sovereignty, there is some support for the notion that uniform rule in copyright was in the plan of the convention. Prior to the constitution, Noah Webster urged the states to pass copyright laws, inspired by the model of the Statute of Anne (1710). The federal government lacked the authority to regulate copyrights under the Articles of Confederation (1781-89), leaving the power to the states.
Atticus is fully abrogating!

These state laws were ineffective, however, as an author would need to register in each state individually; further, several states' laws included provisions whereby the law would not go into effect until each state provided the same protections. Such laws never came into effect, as Delaware never passed a copyright law under the Articles of Confederation.

As a result, James Madison wrote in Federalist 43 that "[t]he States cannot separately make effectual provisions" for copyright, noting that the Federal government will provide uniformity by anticipating the laws of the states in this regard. This extrinsic record provides a reasonable basis for assuming an intention for uniformity, and thus, valid abrogation of state sovereign immunity in copyright. There is little intrinsic record to establish intent either way, as the copyright clause was passed unanimously without recorded debate at the constitutional convention.

14th Amendment, Section 5

Section 5 of the 14th Amendment provides Congress the authority to enforce the provisions of the 14th Amendment by appropriate legislation; this power may be used to abrogate state sovereign immunity regardless of the 11th Amendment if the legislation is enacted pursuant to the City of Boerne test. Among the several provisions of the 14th Amendment, three may serve as the basis for abrogation in the copyright context: the Privileges or Immunities clause, the Deprivation of Property Without the Due Process of Law, or the Takings clause.

Privileges or Immunities Clause

Section 5 of the 14th amendment states that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As copyright protection hinges on compliance with formalities (registration and deposit) resulting in a federally-granted copyright registration, copyright may rightly be construed as a federal privilege; this is underscored by the historical context of the copyright clause. 

Copyright can be construed to fall even within the narrow construction of federal privileges; the Court in the Slaughter-House cases construed federal privilege to be limited to those powers granted specifically to "the citizens of the United States" (in contrast with those granted to citizens of the individual states, or non-citizens). Copyright was generally restricted to citizens and residents until 1891 in the United States, presenting a federal privilege. 

Under a City of Boerne analysis, any violation of privilege is unconstitutional. Thus, the first factor is satisfied. The second factor, a pattern is evident in the hundreds of infringements presented in the Amicii offered to the Court. Should the Court, however, elect to restrict the analysis to the evidence presented, a sufficient number of infringements can be seen in the cases discussed in the legislative record. The third factor, congruence and proportionality is satisfied by the simple way that states may avoid liability - seeking a license as a market participant. Noting that state entities receive copyright registrations for works they author, they already participate in the market of copyright; there is no reason to construe participation on equal grounds with the rest of the market to be incongruent or disproportionate. 

Due Process of Law

Copyright being a form of property, state sovereign immunity may be abrogated to remedy unconstitutional deprivations of copyrights without due process of law, in the form of copyright infringement. In order to qualify as unconstitutional deprivations of property without due process of law, the deprivations must be without "adequate remedy". In order to satisfy this criteria, the injunctive remedies available to copyright owners for infringement of copyright by states must be considered "inadequate." 

Looking to the Copyright Alternative Small-claims Enforcement (CASE) Act, and the 1783 Continental Congress report which states that "no property is more a man's own than the fruit of his study," it is clear that mere injunctive remedies are insufficient to effect the aims of the copyright clause.

The same Boerne analysis would apply under due process analysis, although infringements and the pattern thereof would be restricted to those instances where no adequate remedy is available.

Takings Clause

Atticus only takes for his personal use
The 14th Amendment incorporates the Takings clause of the 5th Amendment, whereby the taking of property for public use without just compensation is prohibited; through the 14th Amendment, this prohibition is extended to the states.

Noting that only takings for "public use" would violate this provision, Congress' authority to abrogate state sovereign immunity may be limited to those cases where the state infringes a public use of the copyright. A reasonable construction of "public use" in copyright would limit abrogation to infringements of the rights of public display, public performance, and distribution to the public.

This presents a similar Boerne analysis as the other two cases, although internal uses where only the right of reproduction is implicated would not serve as constitutional violations necessary to abrogate immunity under Section 5 of the 14th Amendment. Blackbeard's Law, however, would be a clear violation of the Takings clause.


When looking at the historical record, this Kat believes that there is a strong case for valid abrogation under Congressional Article 1 power. Whether or not the Court  would further disturb the holding of Seminole Tribes is another question. The Court did, however, express substantial concern about Blackbeard's Law in oral argument; the concern came from several Justices. 

Should the Court choose to leave Seminole Tribes and the 11th Amendment jurisprudence undisturbed, this Kat is hopeful, but not entirely confident that the Court will uphold the CRCA on Section 5 of the 14th Amendment. This could turn on whether or not the Court decides to consider only the evidence presented in the legislative record, or that which has emerged since. However, I predict that a ruling from the Supreme Court that states may infringe copyright at will with no chance of money damages being awarded to the copyright holders will lead to rampant infringement. 

The infringement will be wide, including software, literature, textbooks, films, music, and more across many government venues (state hospitals, universities, school districts, prisons, administrative functions, etc.). This infringement will serve as the basis for a new legislative initiative to abrogate state sovereign immunity - validly - under Section 5 of the 14th Amendment. This Kat will keep you posted as the process unfolds!
Can states pirate works without paying? The potential grounds for abrogation of state sovereign immunity in copyright Can states pirate works without paying? The potential grounds for abrogation of state sovereign immunity in copyright Reviewed by Thomas Key on Wednesday, February 19, 2020 Rating: 5

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