United States Supreme Court affirms state immunity from copyright infringement. ALLEN v. COOPER

United States Supreme Court affirms state immunity from copyright infringement. ALLEN v. COOPER

United States copyright law grants the creator of a new work the exclusive right to reproduce, distribute, perform, display, transmit and prepare derivative works based on the copyrighted work.  A creator is granted a copyright when they create a copyrighted work. A copyright can be registered with The United States Copyright Office to strength the rights associated with it, however registration is not required for a copyright to be granted.  If someone other than the copyright owner attempts to exercise one of the exclusive rights granted by copyright law, that can be considered copyright infringement.  A copyright owner can file a complaint with a court to stop copyright infringement with an injunction and to get monetary damages for infringement which has already occurred.

In the United States a copyright is one of several legal concepts which shape the outcome of lawsuits.  Another important legal concept is sovereign immunity.  Sovereign immunity is the principle that a government cannot be sued unless the government consents to be sued.  In the case of copyright infringement, the federal government has specifically waived its immunity from copyright infringement lawsuits under 28 USC 1498(b), but the penalties a copyright plaintiff can recover are extremely limited.  When state governments are involved the answer is not so clear.  The Copyright Remedy Clarification Act, at 17 U.S.C. 511(a) tries to make state governments liable for copyright infringement.  However most courts have held that Congress does not have the authority to waive a states sovereign immunity. This leaves a copyright owner in a difficult position when a state government is a potential defendant in a copyright infringement lawsuit.

ALLEN v. COOPER, GOVERNOR OF NORTH CAROLINA, 18-877 (U.S. 2020) is a case which demonstrates that state sovereign immunity will continue to shield state governments from liability for copyright infringement.

This case revolves around the Pirate Blackbeard’s flagship, the Queen Anne’s Revenge (QAR), which sank off the coast of North Carolina in 1718.  In 1996 the ship wreck was discovered and salvaged by Intersal, with the permission of the appropriate state agencies.  The plaintiff and his company video taped the salvage operation under contract with Intersal.  Permission for the salvage was granted because Inersal agreed to allow the North Carolina Department of Natural and Cultural Resources access to photographs, videos and maps related to the salvage operation.

The North Carolina Department of Natural and Cultural Resources later posted videos made by the plaintiff on the internet.  In 2013 there was a settlement agreement between the two parties, but videos were uploaded to the internet a second time.  In 2015 the plaintiff filed suit for copyright infringement, not against the department but against various state employees that worked for the department.

The District Court found that sovereign immunity did not shield the defendants from liability for copyright infringement.  The defendants appealed that decision.   The Fourth Circuit held that the settlement agreement was not a waiver of sovereign immunity, that Congress did not have the power to waive state sovereign immunity in the Copyright Remedy Clarification Act, and that the copyright claims against the North Carolina officials in their individual capacities are precluded by qualified immunity.  The Fourth Circuit remanded the case to the District Court with instructions to dismiss the claims against individuals with prejudice and dismiss the claims against the state without prejudice.  The plaintiff appealed that decision to the United States Supreme Court.

The Supreme Court held that Congress overstepped its authority when it enacted the Copyright Remedy Clarification Act and therefore the state is not liable for copyright infringement.  The Supreme Court held that there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that
end.  Congress did not demonstrate a congruence and proportionality between copyright infringement and the waiver of state sovereign immunity when it enacted the Copyright Remedy Clarification Act.

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