The Supreme Court is set to hear the case of Allen v. Cooper which addresses the constitutionality of the Copyright Remedy Clarification Act (“CRCA”). The purpose of the CRCA is to abrogate sovereign immunity enjoyed by States and State actors under the Eleventh Amendment for claims of copyright infringement. The CRCA provides as follows:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

The CRCA was passed in 1990 but had been struck down as unconstitutional by district courts in the 1st, 2nd, 4th, 5th, 6th, and 9th Circuits, and the appellate court of the 11th Circuit. In each of these cases the Court held that the Eleventh Amendment prohibits Congress from using its Article I powers to abrogate states’ sovereign immunity.

The facts underlying Allen v. Cooper include the famous pirate ship, Blackbeard’s Queen Anne’s Revenge. The notorious pirate used Queen Anne’s Revenge as his flagship vessel, operating in the 1700s from the eastern coast of the American colonies to the West Indies. Blackbeard is known to have used the shallow inlets of North Carolina’s Outer Banks as cover to aid in ransacking and pillaging unsuspecting ships. Shortly after blockading Charleston harbor in May 1718, Blackbeard ran the Queen Anne’s Revenge aground at Beaufort, North Carolina.

In 1996, the shipwreck was discovered, and Allen and his company documented the salvage operation of the famous pirate ship which took twenty years. Allen registered his copyright interest in the various videos and still images of the salvage operation.

The State of North Carolina and its Department of Natural and Cultural Resources copied and publicly displayed a number of Allen’s videos and still images online without permission. The State then attempted to insulate itself from liability for that subsequent infringement by passing “Blackbeard’s Law,” which purportedly converted Allen’s footage into “public record” materials that can be freely used by the State.

On December 1, 2015, Allen sued the State of North Carolina for copyright infringement. The State promptly moved to dismiss the copyright claim on the ground that the sovereign immunity enjoyed by the state under the Eleventh Amendment shields the State from suit in federal court. While the district court denied the State’s motion to dismiss, holding that the CRCA abrogated the State’s sovereign immunity under the Eleventh Amendment, on appeal the Fourth Circuit reversed. On January 4, 2019 Allen filed a petition for a writ of certiorari with the United States Supreme Court, which the Court granted on June 3, 2019.

The issue before the Supreme Court is whether Congress validly abrogated state sovereign immunity when it enacted the CRCA. If the Court were to find the CRCA unconstitutional, little could be done to prevent states from infringing copyright with impunity and without fear of reprisal.