A new Supreme Court decision holds that states are immune from infringement suits under the United States Copyright Act, despite a 1990 law that attempted to remove states’ sovereign immunity in copyright infringement cases.

In Allen v. Cooper (decided March 23, 2020), the Court considered a case involving videos and photos of a shipwreck that the state of North Carolina published online. The owner of the copyrights sued the state for copyright infringement. The state moved to dismiss the suit on the ground of state sovereign immunity. The copyright holder countered that the Copyright Remedy Clarification Act of 1990 (CRCA) removed states’ sovereign immunity in copyright infringement suits.

In its decision, the Court noted that “a federal court generally may not hear a suit brought by any person against a nonconsenting State.” However, exceptions can be made if (1) Congress enacts “unequivocal statutory language” that takes away states’ immunity in defined situations, and (2) some constitutional provision permits the encroachment on states’ immunity. The Court found that the CRCA met the first test, but not the second test, and thus did not qualify for an exception.

In particular, the Court noted that Article I (the Intellectual Property Clause) of the U.S. Constitution gives Congress the power to secure copyright holders the exclusive right to their discoveries, but the Clause says nothing about abrogating states’ sovereign immunity.

The Court’s decision harmonizes copyright law with patent law. In a 1999 decision (Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank), the Court reached the same conclusion regarding states’ sovereign immunity and the Patent Act.

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