The NCSL Blog


By Lisa Soronen

One can’t help but wonder if the U.S. Supreme Court decided to hear Allen v. Cooper because it involves a pirate ship.

engraving of Edward Teach, aka Blackbeard It’s not exactly a “shiver me timbers” dispute: The legal issue the Supreme Court will decide is whether states can be sued in federal court for copyright violations, which likely won’t make for swashbuckling arguments.

North Carolina owns a ship that the pirate Blackbeard captured and renamed Queen Anne’s Revenge. It sank between 1717-18. In the late 1990s, North Carolina permitted a private research and salvage firm to photograph the shipwreck.

North Carolina continued to own the wreck and its artifacts, and the company could make money from the sale of media related to the ship. Frederick Allen, who was hired by the salvage firm to take photos and videos of the ship, sued North Carolina for infringing on images Allen copyrighted.

The 11th Amendment protects states and state officials acting in their official capacity from being sued in federal court. Congress may abrogate sovereign immunity by making a clear statement of its intent and validly exercising congressional power. Allen claims North Carolina can be sued in federal court for infringing on his copyright because Congress abrogated states’ sovereign immunity in the Copyright Remedy Clarification Act.

Both parties agree that Congress made a clear statement of intent to abrogate sovereign immunity. So, the only issue in the case is whether Congress validly exercised its power to abrogate sovereign immunity. The 4th Circuit concluded Congress did not.

In the Copyright Remedy Clarification Act, Congress invoked the U.S. Constitution Article I Patent and Copyright Clause, which authorizes Congress to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’” But the 4th Circuit pointed out that in Seminole Tribe v. Florida (1996), the Supreme Court held that Congress can’t use its Article I power to abrogate 11th Amendment immunity.

Allen also argued Congress validly enacted the Copyright Remedy Clarification Act under the authority granted to it in § 5 of the 14th Amendment, which affords Congress the “power to enforce, by appropriate legislation,” the amendment’s substantive guarantees.

North Carolina countered Congress did not validly exercise its § 5 power in enacting the act because (1) it did not purport to rely on its § 5 authority, and (2) it did not tailor the act to an “identified, widespread pattern of conduct made unconstitutional by the Fourteenth Amendment.”

The 4th Circuit agreed with North Carolina that in adopting the act Congress found no widespread pattern of states infringing on copyrights “that presumably violated the Fourteenth Amendment’s Due Process Clause.” (Congress did find two instances where states invoked sovereign immunity to continue playing copyrighted films in prison where the willfulness of state officials amounted to a due process violation.)

“Acting against this backdrop of limited evidence, Congress enacted the Copyright Remedy Clarification Act to make States broadly, immediately, and indefinitely accountable for copyright infringement to the same extent as private parties, imposing sweeping liability for all violations of federal copyright law, whether the violation implicates the Fourteenth Amendment or not.”

In his certiorari petition, Allen notes that the federal circuit courts of appeals aren’t divided on the issue in this case. According to Allen, “[w]hat should occasion this Court’s review is the federal judiciary’s relatively unexamined disregard of a law enacted by Congress as a co-equal branch, and the distension of vital principles that should properly define and limit each branch’s respective powers.”

So tune in next year to find out which party walks the legal plank.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.