The Copyright Remedy Clarification Act of 1990 Held Unconstitutional: States can infringe copyrights
Updated: May 13, 2020
In Allen v. Cooper, the Supreme Court held that Congress could not abrogate state immunity from suit under Seminole Tribe of Florida v. Florida, Congress passed the Copyright Remedy Clarification Act of 1990 ("CRCA") to allow copyright owners to sue states that infringe their copyrights.
Allen was a videographer that recorded the recovery of the Queen Anne's Revenge off the coast of North Carolina. North Carolina started to use Allen's copyrighted material without his permission. He sued for copyright infringement, but North Carolina invoked state sovereign immunity.
The Supreme Court held that Congress did not have authority to abrogate state immunity because it had not established a pattern of copyright infringement by the states to justify Congress's use of its authority under Section 5 of the Fourteenth Amendment. The Court relied heavily on its opinion in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank where it found a similar act allowing patent owners to enforce patents against the states unconstitutional.
The Court failed to address the chicken-and-egg problem that there will be little evidence of infringement, when potential plaintiffs will not likely not pursue enforcement action against the states because the law provides immunity from suit. So it is unclear how the kind of pattern can develop that Congress can rely on to pass new legislation.
Justice Thomas in a concurrence also expressed some skepticism that copyright was a form of property under the Due Process Clause.
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