States’ Wrongs

I am a big believer in states’ rights as a limit on the reach of the federal government. That said, there ARE powers the Constitution specifically grants to the Congress and copyright is one of them. That is part of why it is so frustrating that the Supreme Court held that States can infringe copyright and get away with it thanks to a doctrine called, “sovereign immunity.”

Back in age of monarchs, the king exercised all the power of what we know in the United States as the three branches of government: he made the law, he enforced the law, and the adjudicated cases under the law. It is not coincidence that when we sue someone today, we take them to “court” and the nobles who surrounded the monarch were known as the king’s “court.” Would it make any sense to sue the king in his own court? Obviously not.

Even as the power of the British monarchy waned, the principle that one cannot sue the sovereign without the sovereign’s consent endured. That was imported into the United States at the founding of the Republic, along with many other British legal traditions. Thus, the 11^th Amendment to the U.S. Constitution provides:

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.

For a time the rule was that Congress could override state sovereign immunity when acting within its enumerated powers provided by the Constitution. Then there was a case that required such abrogation must be “unmistakably clear.” Section 511 of the Copyright Act was enacted in 1990 to make unmistakably clear Congress’ intent that states be liable for copyright infringement they may commit.

Moving the Goalposts

In 1996 the Supreme Court held that not all powers of Congress could be the basis of abrogation of states’ sovereign immunity, only enactments pursuant to the enforcement of the 14^th Amendment, which guarantees due process and equal protection under the law. Then in 1999 in cases involving patents and trademarks, the Supreme Court ratcheted the requirements even higher, holding that under the Constitution, Congress could only enact a general abrogation of states’ sovereign immunity in a field of law for intentional violations of law and where there had been a history and pattern of violations, such as the anti-discrimination civil rights legislation of the 1960s. Wow. How many areas of law can meet that high a standard?

However many it is, copyright is not one of them. In 2020 the Supreme Court in Allen v. Cooper held that section 511 of the Copyright Act was not a proper abrogation of states’ sovereign immunity. The facts of that case illustrate the real-world unfairness that has resulted from the way the doctrine is being applied.

Pirating the Images of a Pirate Ship

Rick Allen^[1] is a professional photographer who specializes in underwater photography. After the discovery off the coast of North Carolina of the wreck of the infamous pirate Blackbeard’s ship, Queen Anne’s Revenge, Rick was hired to dive and take photos and video of the shipwreck, which he did for more than a decade. His works have been aired on the History Channel, the Discovery Channel, National Geographic, and so on.

North Carolina loved Rick’s work so much they posted some of it on state websites, which they did not have Rick’s permission to do. He objected, but they did not stop. When he filed a lawsuit, the state legislature passed a law trying to undermine his rights. So, Rick proceeded with what would have been an open-and-shut case of copyright infringement against any defendant except a state.^[2] As mentioned, the Supreme Court ruled that North Carolina (and all states that have not voluntarily waived their sovereign immunity from copyright infringement suits) is immune.

Rick tried again, suing for the unconstitutional taking of his property by North Carolina under the 5^th and 14^thAmendments instead of copyright infringement directly under the Copyright Act. This raised a dizzying array of not only Constitutional issues, but questions about courts’ jurisdiction and civil procedure. Ultimately, the 4^th Circuit’s ruling earlier this year essentially ended Rick’s long-running battle to vindicate his rights.

Perhaps Constitutional scholars would find merit in the doctrines and principles, but I see something very different. I see blatant copyright infringement by a U.S. state that undoubtedly spent a lot more in litigation costs than it would have needed to pay Rick what it should have paid him at the outset. This is an injustice, plain and simple.

Conclusion

I was working on this issue for the Copyright Office back when the 1999 Supreme Court decisions were issued. We couldn’t prove a tidal wave of intentional infringements by states then. I’m not aware that anyone has the information to demonstrate a surge since then. Certainly not one large enough likely to satisfy the Supreme Court’s moving target to sustain Congressional abrogation of states’ sovereign immunity. The irony should not be lost on anyone that at the same time states have the opportunity to shield their own infringements, they profit handsomely from licensing state-university-owned patents and from the trademarks of all those big state college sports teams.

Rick Allen’s case is one of the worst I know of, but I can’t believe its unique. Even if such cases aren’t an epidemic, each one is a travesty. It is unamerican when a government can violate the property rights of American citizens and leave them with no effective recourse. That is exactly what happened to Rick. Legislation was considered in Congress after those 1999 decisions. While those bills were not enacted, I would very much like to find a solution that protects creators from this sort of abuse at the hands of state governments and the doctrine of sovereign immunity.

^[1] I am personally acquainted with Rick as a result of his advocacy arising from his mistreatment by the state of North Carolina and the ensuing litigation. Neither he nor any of his legal representatives had advance notice of this post or opportunity to review or comment on it prior to publication.

^[2] The federal government also enjoys sovereign immunity from suits, but Congress has enacted a waiver of that immunity for patent and copyright infringement claims. See 28 U.S.C. §1498.