On March 23, 2020, in a decision containing not a small amount of whimsy (more regarding that aspect anon), Justice Kagan, joined almost unanimously by her brethren, upheld a State's (here, North Carolina) sovereign immunity against suit for copyright infringement, in Allen v. Cooper.

The case (and the whimsy) arose over Petitioner Allen's suit against North Carolina's unauthorized use of copyrighted materials relating to the discovery and salvage of the pirate Blackbeard's "flagship" Revenge off the coastal waters of that state and, hence, being State property. Petitioner relied on the provisions of the Copyright Remedy Clarification Act of 1990 (CRCA), codified at 17 U. S. C. § 511:

[A] State "shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for copyright infringement. 17 U. S. C. §511(a). [I]n such a suit a State will be liable, and subject to remedies, "in the same manner and to the same extent as" a private party. §511(b).

North Carolina asserted sovereign immunity under the Eleventh Amendment:

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 an- other State, or by Citizens or Subjects of any Foreign State.

The District Court found for plaintiff, based on the express provisions of the CTCA, and on Section 5 of the Fourteenth Amendment, in view of the "the States' 'pattern' of 'abus[ive]' copyright infringement." The Fourth Circuit reversed, based on the Supreme Court's decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), holding the Patent Remedy Act, enacted by Congress on the same day and having substantially the same provisions.

The Court affirmed, in a decision by Justice Kagan and joined by the Court with the exception of two portions of the opinion in which Justice Thomas did not join; in addition, Justice Breyer wrote a concurring opinion joined by Justice Ginsberg. The opinion noted that the express language of the Eleventh Amendment is not unequivocal but that sovereign immunity stands for the "presupposition of our constitutional structure which it confirms," citing Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). This presumption is, first, that "each State is a sovereign entity in our federal system," citing Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996). Second, "[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit" absent consent, cited in Seminole Tribe relying on The Federalist No. 81, p. 487 (A. Hamilton). Finally, that "fundamental aspect of sovereignty constrains federal 'judicial authority'" according to the Court, citing Blatchford.

The immunity is not absolute and the Court has recognized exceptions, in instances where Congress enacts a statute having "unequivocal statutory language" that abrogates a State's sovereign immunity (citing Dellmuth v. Muth, 491 U. S. 223, 228 (1989)) and there is some constitutional provision that excuses Congress's encroachment on sovereign state prerogatives (citing Kimel v. Florida Bd. of Regents, 528 U. S. 62, 78 (2000)). In this case the first prong of the test was indisputably met. As for the second prong, Petitioner relied on Congress's Article I power to grant copyrights, and the Fourteenth Amendment's grant to Congress of the power to enforce the Amendment's due process provisions.

The Court rejected these arguments, the opinion stating that "[t]he slate on which we write today is anything but clean." The Article I power to grant copyrights (and patents) "impose a corresponding duty (i.e., not to infringe) on States no less than private parties," according to the Court, citing Goldstein v. California, 412 U. S. 546, 560 (1973). Hence, abrogation of North Carolina's sovereign immunity is the best, or only, way to protect Petitioner's copyright (according to Petitioner). But, the opinion asserts, "[t]he problem for Allen is that this Court has already rejected his theory, in Florida Prepaid. While that case involved Congress's failed attempt to abrogate State sovereign immunity for patent infringement, the constitutional basis for copyright protection arises in in the same provision of Article I as patent protection (Section 8, clause 8) and thus that decision mandates the Court's opinion here. The Court noted that the justifications for stripping States of sovereign immunity in Florida Prepaid for patents were the same as asserted here: "to ensure 'uniform, surefire protection' of intellectual property." While acknowledging that this was a "proper Article I concern," the opinion reiterates the holding of Florida Prepaid that it isn't enough to satisfy the second prong, that there is a constitutional provision supporting this exercise of federal power, based on the Court's decision in Seminole Tribe v. Florida. The rubric from the case is that Congress does not have the power, under Article I, to "circumvent" the limitations sovereign immunity places on federal jurisdiction. As stated in the opinion, "the power to 'secur[e]' an intellectual property owner's 'exclusive Right' under Article I stops when it runs into sovereign immunity."

The Court also rejected Petitioner's argument that Central Va. Community College v. Katz provided "an exit ramp" from the Florida Prepaid precedent. 546 U. S. 356, 359 (2006). Katz involved the Bankruptcy Clause, which the Court decided enabled Congress to compel states to participate in bankruptcy proceedings. But the opinion notes that the Court had expressly exempted bankruptcy proceedings from Seminole Tribe's general rule. The Court refused here to extend "bankruptcy exceptionalism" to the Copyright Clause. Bankruptcy proceedings were "in rem" according to the Court, and accordingly "it does not implicate States' sovereignty to nearly the same degree as other kinds of jurisdiction," citing Katz. In addition, the Court in Katz found that bankruptcy proceedings and the Bankruptcy Clause had a "unique history" that produced in the Court "a felt need to curb the States' authority." This need stemmed from the "wildly divergent schemes" different States had at the founding of the Republic for discharging debt in bankruptcy and that the States at that time had a history of not respecting discharge orders from other states. As is its wont, the Court reverted to the origins and purposes (the Framers' intentions) of the Bankruptcy Clause for justification for its distinction. And the Court in Katz had found that by ratifying the Constitution, the States had agreed to yield their sovereign immunity (in view of the language of the Bankruptcy Clause itself); because a State can always waive its immunity any apparent inconsistency was thus resolved.

Florida Prepaid, and stare decisis, were enough in the Court's view to determine the outcome here, because finding abrogation of North Carolina's sovereign immunity would be directly contrary to affirming Florida's sovereign immunity in the Court's earlier precedent. The only way to abrogate sovereign immunity in this case would be to overrule the Court's recognition of Florida's sovereign immunity. Calling stare decisis a "foundation stone of the rule of law" (and citing Michigan v. Bay Mills Indian Community, 572 U. S. 782, 798 (2014), a case on Indian tribe immunity for the principle), the opinion states that there must be a "special justification" for doing so (as well as a belief that the earlier case had been wrongly decided), which the Court did not find here.

Regarding Section 5 of the Fourteenth Amendment, the Court recognized that the Amendment "fundamentally altered the balance of state and federal power," citing Seminole Tribe, and that the Court has held that (under the right circumstances) the this Amendment gives Congress the power to abrogate State sovereign immunity, citing Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). But this power is limited: for example, it must be tailored to "remedy or prevent" State conduct that violates the Amendment's due process guaranties, citing City of Boerne v. Flores, 521 U. S. 507, 519 (1997). The Court has fashioned a "means-ends test" in this regard, wherein "Congress can permit suits against States for actual violations of the rights guaranteed in Section 1" of the Amendment. The Court requires a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." But the limits on this grant of power are what the amendment actually bars, which are violations of due process. In this case, the question the Court apprehends is "[w]hen does the Fourteenth Amendment care about copyright infringement?" finding the answer is "sometimes," particularly when States deprive a citizen of property without due process of law. But "sometimes" does not mean "always," according to the opinion, excluding for example instances of negligence, citing Daniels v. Williams, 474 U. S. 327, 328 (1986). Copyright infringement must be intentional, or at least reckless, for the due process protections of the Fourteenth Amendment to come to bear, and only where the State does not offer a remedy for the infringement, citing Hudson v. Palmer, 468 U. S. 517, 533 (1984).

In resolving the question before it regarding the Fourteenth Amendment, the Court once again turned to its decision in Florida Prepaid, as defining unconstitutional infringement to be "intentional conduct for which there is no adequate state remedy." In that case, "the statute's abrogation of immunity [the Patent Remedy Act], the equivalent of the CRCA's—was out of all proportion to what it found [in the legislative history]." This was because, inter alia, "Congress did not identify a pattern of unconstitutional patent infringement" (indeed, the Court characterized the evidence as "thin," amounting to only two examples in the context of most States complying with the Patent Statute). In addition, that evidence was that States' infringement was "innocent or at worst negligent" rather than reckless or intentional. The Court noted that the Patent Remedy Act was disproportionate to the harm that provoked it, stating "it exposed all States to the hilt" of liability for patent infringement. It was not carefully and narrowly claimed to correct a problem but provided "a uniform remedy for patent infringement." It did not "enforce" Section 1 (due process) of the Fourteenth Amendment and thus was not "appropriate" for enforcing the Amendment under Section 5.

In view of the "identical scope" of the statute at issue here the Court rhetorically asks "[c]ould . . . this case come out differently" (and answering "no") unless there was stronger evidence of intentional or reckless (i.e., unconstitutional) infringement. In this case there was a greater quantum of evidence supporting State infringement of copyrights (including a 155-page report from the Register of Copyrights). But the Court held that even this wasn't enough. The Court found the evidence "scarcely more impressive" ("only a dozen possible examples of state infringement" and "seven court cases brought against States" as well as "five [uncorraborated] anecdotes taken from public comments") than the evidence for States' patent infringement in Florida Prepaid. And only two of these examples raised any due process issues. Under this analysis the Court found that this statute failed the "congruence and proportionality" test and the outcome could not differ from the Court's earlier decision in Florida Prepaid.

The opinion concludes with the Court suggesting that Congress could pass a statute abrogating State sovereign immunity. Noting that Congress passed both the Patent Remedy Act and the CRCA prior to the Court's decision in Seminole Tribe, the opinion suggests that "Congress will know the rules" regarding "the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection" should Congress decide to pursue another statute to abrogate State sovereign immunity. Such a "tailored statute" could "effectively stop States from behaving as copyright pirates" and, as a consequence, "bring digital Blackbeards to justice."

Justice Thomas wrote separately in concurrence, joining all but two sections of the Court's opinion and raising a question he believes unsettled in the law. Regarding the first of these section of the opinion, regarding stare decisis, the Justice believes that the Court has a responsibility to overrule earlier precedent for error without requiring "special justifications" as discussed in the opinion. His second disagreement involved the opinion's discussion of the possibility of future legislation abrogating State sovereign immunity; here the Justice thinks such talk goes beyond the Court's role to provide opinions "only [on] the case before us in light of the record before us," citing Manhattan Community Access Corp. v. Halleck, 587 U. S. ___, ___ (2019) (slip op., at 15). As for the question, Justice Thomas is not convinced that "[c]opyrights are a form of property."

Justice Breyer also wrote a concurring opinion, joined by Justice Ginsberg. The gist of the concurring opinion (also colorfully set forth) is that the Court's decision in Florida Prepaid was incorrect, and setting forth the Justice's more fulsome explication of his views in Justice Stevens' dissent in Florida Prepaid and the Court's opinion in Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455–456 (2015), as well as his own dissent in Franchise Tax Board of California v. Hyatt, 587 U.S. ___, ___ (2019).

Allen v. Cooper (2020)
Opinion by Justice Kagan, joined by Chief Justice Roberts and Justices Alito, Sotomayor, Gorsuch, and Kavanaugh, joined by Justice Thomas except for the final paragraph in Part II–A and the final paragraph in Part II–B; opinion concurring in part and concurring in the judgment by Justice Thomas; opinion concurring in the judgment by Justice Breyer, joined by Justice Ginsburg