Ryan McLeod is a J.D. candidate, 2021 at NYU School of Law.

Piracy has finally reached the Supreme Court—and not only the modern kind. The Court’s recent decision in  Allen v. Cooper, 206 L. Ed. 2d 291 (2020) has it all: copyright infringement, the infamous 18th century pirate known as Blackbeard, and an issue of State sovereign immunity. In its decision, the Court reached an unsurprising but potentially far-reaching result that may affect how states, and particularly public schools, use (or abuse) copyrighted works.

Blackbeard’s flagship, the Queen Anne’s Revenge ran aground in 1718 while attempting to enter Beaufort Inlet in North Carolina. Nearly 200 years later, in 1996, a marine salvage company discovered the wreck. Under federal and state law, the wreck belonged to North Carolina, and the state contracted with the salvage company to begin excavation. Since then, archaeologists have been exploring, documenting, and recovering archaeological remains from the site.

The salvage company, Intersal, also hired videographer Frederick Allen to document the recovery effort. Allen did so for nearly two decades, making over 200 dives to gather footage, all the while claiming copyright on the work he created. But after North Carolina officials ignored his copyrights, publishing several of his videos on YouTube and printing a photo in a newsletter, Allen filed suit.

To Allen and his attorneys, the case may have looked like a slam dunk, and the district court apparently agreed. However, the Fourth Circuit reversed on state sovereign immunity grounds, finding that North Carolina could not be sued in federal court for copyright infringement. In the process, it joined “numerous other courts” in holding the Copyright Remedy Clarification Act (CRCA) unconstitutional. Allen v. Cooper, 895 F.3d 337, 353 (4th Cir. 2018).

As a general rule, federal courts cannot hear suits brought by individuals against nonconsenting states. There are some exceptions—Congress acted in the 1990s to strip the states of sovereign immunity from patent and copyright infringement cases. While the Supreme Court invalidated the Patent and Plant Variety Production Clarification Act in 1999, the CRCA persisted for a further 20 years until the Court agreed to hear Allen. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1990).

In a unanimous ruling, the Supreme Court held that Congress lacked the authority to entirely abrogate the states’ immunity from copyright infringement suits. Justice Kagan’s opinion draws heavily on precedent set by Florida Prepaid, which determined that Congress cannot use the IP clause to justify abrogating state sovereign immunity in all infringement cases. Congress may have the power to limit state authority “by appropriate legislation,” but abrogation of sovereign immunity is only constitutional when it is tailored to address due process violations. In both Florida Prepaid and Allen, the Court found that Congress had “swept too far” in abrogating sovereign immunity for all infringement suits, not just those that offend the Fourteenth Amendment. Kagan suggests that to pass muster, such a law would need to confine abrogation to nonnegligent infringement, infringement authorized by state policy, or states that refuse to offer alternative remedies.

It is easy to agree that not all copyright infringement is a constitutional offense. But Justice Kagan goes further, dismissing the belief of copyright owners that they will “suffer immediate harm” from losing the ability to sue infringing states (citing the legislative history of the CRCA as well as amicus briefs from the RIAA, American Society of Media Photographers, Copyright Alliance, and Software & Information Industry Association), in part because the legislative history did not indicate any significant record of copyright violations by states. It’s less clear that this is true today, but there are certainly normative and structural arguments that favor limiting the ability of copyright holders to enforce their rights against certain arms of the state.

 “Arms of the state” that can claim sovereign immunity include universities, public schools, and libraries, all of which make heavy use of copyrighted works, either under a fair use exemption or via costly licenses. In theory, many of these branches could make use of fair use exceptions to copyright, but fair use is such a vague doctrine that it is difficult for educators to negotiate. Some have argued that fair use has become a “little-used set of rights,” despite an apparent privilege in the law for research and education. They note, significantly, that efforts to create easy-to-apply guidelines have not always helped, and most private universities have been forced to enter agreements with publishers to adopt voluntary guidelines.

The Allen court is clear that mistaken or accidental infringement by a state actor does not rise to the level of constitutional harm. Perhaps Justice Kagan was contemplating common situations where an educator oversteps the limits of fair use, like a substitute teacher showing a movie in class to entertain rather than to educate. On the other hand, a state policy that encourages flagrant appropriation of copyrighted works, regardless of fair use, would appear to be the kind of intentional or reckless deprivation of property that would offend due process, and one that should rightfully be discouraged. But this distinction is far from binary, and sovereign immunity is a crude tool with which to address questions of who should be liable for copyright infringement and when. Justice Breyer’s concurrence points out that it is somewhat absurd that Disney can sue anyone except the state for screening “Pirates of the Caribbean” without authorization. Should Disney be able to sue a PTA that screens a movie as a fundraiser, but not a school board that does the same thing? If a state university adopts expansive fair use guidelines in good faith, should a publisher be able to challenge them in court?

Justice Kagan appears to agree that this may not be a desirable status quo and offers some pointers to Congress should it try again at drafting a copyright abrogation statute. But it is far from clear that Congress has the stomach for copyright reform legislation. Advocates for reform have noted that while Congress has made tweaks to copyright law now and then, the last major reform came over 20 years ago in the form of the Digital Millennium Copyright Act (DMCA) and Copyright Term Extension Act—and given the obstacles of invested, entrenched interests, public confusion (if not indifference), and arcane statutory provisions, it is little wonder.

It is unlikely that Allen presages a judicial narrowing of the scope of intellectual property rights at large, but it is worth noting Justice Thomas’s concurrence, which challenges the assumption that copyrights are really property at all. If that were the case, it would apparently follow that government appropriation of a copyrighted work could never be a due process violation, regardless of intent. Justice Thomas writes alone, but perhaps he is seeking a vote from the ghost of Justice Blackbeard, striking a blow for state-sponsored piracy from beyond the grave.

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