Copyright Remedy Clarification Act#Allen v. Cooper

The CRCA has been struck down as unconstitutional by the United States Supreme Court in Allen v. Cooper (March 23, 2020).

The Supreme Court decision followed district and appellate courts in the 1st, 2nd, 4th, 5th, 6th, 9th, and 11th Circuits. The 11th Circuit did not strike down the CRCA but did not allow it to be used to avoid sovereign immunity on the facts that were before it. A case in the 9th Circuit settled before decision. Courts have generally followed the logic applied by the US Supreme Court in Seminole Tribe v. Florida, and applied in the patent context in Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999). In these cases the Court held that the Eleventh Amendment to the United States Constitution prohibits Congress from using its Article I powers to abrogate states' sovereign immunity (a holding that later Supreme Court cases such as Central Virginia Community College v. Katz have qualified), and that the Patent Remedy Clarification Act did not have a sufficient basis to meet Fourteenth Amendment requirements. Although most courts have refused to enforce the CRCA, one district court upheld the Act in 2017 and the 4th Circuit Court of Appeals should rule on an appeal from that decision in mid to late 2018.

Several cases upheld the sovereign immunity of state universities in particular.{{cite web|accessdate=2019-01-22|title=Court Confirms Sovereign Immunity for State Universities in Copyright Suit|url=https://copyright.byu.edu/content/court-confirms-sovereign-immunity-state-universities-copyright-suit |website=Copyright Licensing Office}}{{cite web|accessdate=2019-01-22|title=Are Public Universities Immune from Copyright Infringement?|url=https://copyright.byu.edu/content/are-public-universities-immune-copyright-infringement |website=Copyright Licensing Office|date=30 January 2017 }} Legal scholars Paul J. Heald and Michael Wells wrote{{cite journal |last1=Heald |first1=Paul |last2=Wells |first2=Michael |title=Remedies for the Misappropriation ofIntellectual Property by State and MunicipalGovernments Before and After SeminoleTribe: The Eleventh Amendmentand Other Immunity Doctrines |journal=Washington and Lee Law Review |date=1 June 1998 |volume=55 |issue=3 |pages=849 |url=https://scholarlycommons.law.wlu.edu/wlulr/vol55/iss3/11/ }} that

{{blockquote|the majority of lower courts that have addressed the question have assumed state universities to be arms of the state for the purpose of asserting Eleventh Amendment immunity.}}

Further, cases for copyright violation by university radio stations were also dismissed as the radio, funded mostly by the university, was found to enjoy the same immunity.{{cite court|url=https://archive.org/download/gov.uscourts.insd.55298/gov.uscourts.insd.55298.37.0.pdf|litigants=Philpot v. WKMS|date=2016-03-30|court=United States District Court for the Southern District of Indiana Indianapolis Division}}

{{blockquote|Here, the evidence is convincing and clear that WKMS is both financially and operationally dependent on the University and its Board of Regents, which, as we have already established, is considered the Commonwealth of Kentucky for purposes of Eleventh Amendment immunity. See Jackson v. Murray State Univ., 834 F. Supp. 2d.}}

The CRCA attempt was repeated by Congress with the Intellectual Property Protection Restoration Act of 2001.{{cite journal |first=Alisa |last=Roberts |title=Congress' Latest Attempt to Abrogate States' Sovereign Immunity Defense Against Copyright Infringement Actions: Will IPPRA Help the Music Industry Combat Online Piracy on College Campuses? |volume=12 |journal=DePaul Journal of Art, Technology & Intellectual Property Law |issue=39 |year=2002 |url=https://via.library.depaul.edu/jatip/vol12/iss1/6}}

The North Carolina Legislature passed "Blackbeard's Law", N.C. General Statute §121-25(b),{{cite web |title=§ 121-25. License to conduct exploration, recovery or salvage operations. |url=https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_121/GS_121-25.pdf |website=ncleg.gov |publisher=North Carolina |access-date=25 May 2023}} which stated, "All photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record pursuant to Chapter 132 of the General Statutes." The state government of North Carolina accordingly uploaded videos of the wreck of the Queen Anne's Revenge to its website.

Nautilus Productions, the company documenting the recovery since 1998, filed suit in federal court over copyright violations.{{cite web |title=Allen v Cooper, et al. |url=https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-877.html |website=Supreme Court of the United States |accessdate=22 June 2019}}{{cite news |last1=Gresko |first1=Jessica |title=High court will hear copyright dispute involving pirate ship |url=https://www.apnews.com/bc8c92c2c8b449158537c356a44cf757 |accessdate=22 June 2019 |publisher=Associated Press |date=3 June 2019}}{{cite news |last1=Wolverton |first1=Paul |title=Pirate ship lawsuit from Fayetteville goes to Supreme Court on Tuesday |url=https://www.fayobserver.com/news/20191102/pirate-ship-lawsuit-from-fayetteville-goes-to-supreme-court-on-tuesday |accessdate=2 November 2019 |publisher=Fayetteville Observer |date=2 November 2019}}

The Supreme Court granted certiorari in the case in 2019.{{Cite web | url=https://www.scotusblog.com/case-files/cases/allen-v-cooper/ |title = Allen v. Cooper}}{{cite web |title=No. 18-877 |url=https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-877.html |website=Supreme Court of the United States |accessdate=25 July 2019}}{{cite news |last1=Liptak |first1=Adam |title=Blackbeard's Ship Heads to Supreme Court in a Battle Over Another Sort of Piracy |url=https://www.nytimes.com/2019/09/02/us/politics/supreme-court-blackbeard-piracy.html |accessdate=20 October 2019 |work=New York Times |date=2 September 2019}}{{cite news |last1=Gardner |first1=Eriq |title=Supreme Court Wrestles With Consequences for Piracy by State Governments |url=https://www.hollywoodreporter.com/thr-esq/supreme-court-wrestles-consequences-piracy-by-state-governments-1252437 |accessdate=16 November 2019 |publisher=Hollywood Reporter |date=5 November 2019}}

On November 5, 2019 the United States Supreme Court heard oral arguments in Allen v. Cooper.{{cite news |last1=Murphy |first1=Brian |title=How Blackbeard's ship and a diver with an 'iron hand' ended up at the Supreme Court |url=https://www.newsobserver.com/news/politics-government/article237019034.html |accessdate=16 November 2019 |publisher=Charlotte Observer |date=5 November 2019}}{{cite news |last1=Wolf |first1=Richard |title=Aarrr, matey! Supreme Court justices frown on state's public display of pirate ship's salvage operation |url=https://www.usatoday.com/story/news/politics/2019/11/05/legendary-pirate-blackbeards-shipwreck-sails-supreme-court/4166346002/ |accessdate=27 December 2019 |publisher=USA Today |date=5 November 2019}}{{cite news |last1=Livni |first1=Ephrat |title=A Supreme Court piracy case involving Blackbeard proves truth is stranger than fiction |url=https://qz.com/1742690/scotus-piracy-case-involving-blackbeard-is-stranger-than-fiction/ |accessdate=27 December 2019 |publisher=Quartz |date=5 November 2019}}{{cite news |last1=Woolverton |first1=Paul |title=Supreme Court justices skeptical in Blackbeard pirate ship case from Fayetteville |url=https://www.fayobserver.com/news/20191105/supreme-court-justices-skeptical-in-blackbeard-pirate-ship-case-from-fayetteville |accessdate=27 December 2019 |publisher=Fayetteville Observer |date=5 November 2019}} On March 23, 2020, the Supreme Court of the United States issued an opinion in Allen v. Cooper, holding that Congress had no Constitutional authority to abrogate state sovereign immunity via the Copyright Remedy Clarification Act. In other words, the CRCA is unconstitutional. Congress failed to provide evidence to support the need to abrogate sovereign immunity.

The case had received broad participation. The American Library Association and others filed an amicus brief siding with the state, saying that "state-run libraries and archives have not abused state sovereign immunity; copyright holders have sufficient means of enforcing their rights against state-run libraries and archives; elimination of the sovereign immunity for copyright claims would endanger digital preservation efforts by state-run libraries and archives".{{cite web|accessdate=2019-11-17|title=LCA Joins Amicus Brief: Frederick L. Allen, et al., v. Roy A. Cooper, III|url=https://www.librarycopyrightalliance.org/documents/united-states-documents/amicus-briefs/lca-joins-amicus-brief-frederick-l-allen-et-al-v-roy-a-cooper-iii/|date=2019-09-27}} Thirteen amici filed briefs in support of Allen, including the United States Chamber of Commerce, the Recording Industry Association of America, the Copyright Alliance, the Software and Information Industry Association, and the National Press Photographers Association.{{cite web |title=Allen v. Cooper |url=https://copyrightalliance.org/copyright-law/copyright-cases/allen-v-cooper/ |website=Copyright Alliance |accessdate=18 November 2019}}{{cite web |title=NPPA, ASMP asks SCOTUS for protection of copyright infringement by states |url=https://nppa.org/news/nppa-asmp-asks-scotus-protection-copyright-infringement-states |website=NPPA |accessdate=18 November 2019}}{{cite web |title=Allen v. Cooper |url=https://www.chamberlitigation.com/cases/allen-v-cooper |website=U.S. Chamber Litigation Center |accessdate=18 November 2019}}

Those briefs proposed various doctrines under which the CRCA could validly abrogate sovereign immunity and variously re-asserted and supported the reasons why Congress examined and enacted CRCA, claiming that Congress was fair in finding that states had abused immunity and that an alternative remedy was needed.{{cite web |last1=Kass |first1=Dani |title=Copyright Cavalry Supports Pirate Ship Photog At High Court |url=https://www.theusconstitution.org/news/copyright-cavalry-supports-pirate-ship-photog-at-high-court/ |website=Constitutional Accountability Center |accessdate=17 November 2019}} The brief by APLU and AAU stated the opposite on all counts. 30 states also filed a brief in support of Cooper, denying that the states had ever given up their sovereign immunity by ratifying the Progress Clause or otherwise. The brief by a law professor stated that there was no copyright infringement in the first place, under de minimis and fair use.

Following the ruling, Senators Thom Tillis (R-North Carolina) and Patrick Leahy (D-Vermont), of the intellectual property subcommittee on the Senate Judiciary Committee, sent letters to the U.S. Copyright Office and the U.S. Patent and Trademark Office requesting a study detailing copyright infringements by state governments.{{cite news |last1=Gardner |first1=Eriq |title=Senators Ask U.S. Copyright, Patent Offices to Study Infringement by States |url=https://www.hollywoodreporter.com/thr-esq/senators-ask-us-copyright-patent-offices-study-infringement-by-states-1292382 |accessdate=15 June 2020 |publisher=Hollywood Reporter |date=29 April 2020}} The United States Copyright Office gave intellectual property owners suffering infringement by state entities until August 3, 2020 to publicly comment as part of this inquiry.{{cite web |title=State Sovereign Immunity Study |url=https://www.copyright.gov/policy/state-sovereign-immunity/ |website=Copyright.gov |publisher=U.S. Copyright Office |accessdate=15 June 2020}} In September 2020 the U.S. Copyright Office began publishing comments where the copyright industry alleged hundreds of copyright violations by state entities across decades, while libraries and state entities denied the significance or intentionality of the alleged infringements.{{cite web |title=Sovereign Immunity Study |url=https://beta.regulations.gov/document/COLC-2020-0009-0001/comment |website=Regulations.gov |accessdate=15 October 2020}}{{cite web |last1=Madigan |first1=Kevin |title=Copyright Alliance Survey Reveals Growing Threat of State Infringement |url=https://copyrightalliance.org/ca_post/copyright-alliance-survey-reveals-growing-threat-of-state-infringement/ |website=Copyright Alliance |date=3 September 2020 |accessdate=15 October 2020}} The subsequent report, issued on August 31, 2021 by the U.S. Copyright Office, referenced 132 copyright lawsuits filed against state entities and stated that "The Office..continues to believe that infringement by state entities is an issue worthy of congressional action."{{cite web |title=Copyright and State Sovereign Immunity |url=https://www.copyright.gov/policy/state-sovereign-immunity/Sovereign%20Immunity%20Report%20final.pdf |website=copyright.gov |publisher=U.S. Copyright Office |access-date=1 September 2021}}

As a result of the ruling Nautilus filed a motion for reconsideration in the United States District Court for the Eastern District of North Carolina.{{cite news |last1=McKlveen |first1=Gina |title=A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity |url=https://ial.uk.com/a-north-carolina-filmmaker-continues-to-challenge-state-sovereign-immunity/ |access-date=24 March 2023 |publisher=Institute of Art & Law |date=28 October 2022}} On August 18, 2021 Judge Terrence Boyle granted the motion for reconsideration which North Carolina promptly appealed to the United States Court of Appeals for the Fourth Circuit.{{cite web |title=Reconsideration Granted |url=https://www.nautilusproductions.com/wp-content/uploads/2021/08/Doc.118.Reconsideration-granted.pdf |website=Nautilus Productions |access-date=5 April 2023}} The 4th Circuit denied the state's motion on October 14, 2022.{{cite web |title=4th Circuit Recon |url=http://www.nautilusproductions.com/wp-content/uploads/2023/04/4th-Circuit-Recon.pdf |website=Nautilus Productions |access-date=5 April 2023}} Nautilus then filed their second amended complaint on February 8, 2023 alleging 5th and 14th Amendment violations of Nautilus' constitutional rights, additional copyright violations, and claiming that North Carolina's "Blackbeard's Law," N.C. General Statute §121-25(b),{{cite web |title=§ 121-25. License to conduct exploration, recovery or salvage operations. |url=https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_121/GS_121-25.pdf |website=ncleg.gov |publisher=North Carolina |access-date=25 May 2023}} represents a Bill of Attainder.{{cite web |title=PLAINTIFFS' SECOND AMENDED COMPLAINT |url=https://ipwatchdog.com/wp-content/uploads/2023/02/134-main.pdf |website=IPWatchdog |access-date=24 March 2023}}{{cite news |last1=Barnes |first1=Greg |title=Fayetteville's Blackbeard shipwreck filmmaker fires back in new court case |url=https://www.cityviewnc.com/stories/fayettevilles-blackbeard-shipwreck-filmmaker-fires-back-in-new-court-case,29512 |access-date=24 March 2023 |publisher=CityView |date=14 February 2023}}

Eight years after the law's passage, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard's Law.{{cite web |title=AN ACT TO MAKE VARIOUS CHANGES TO THE STATUTES GOVERNING THE DEPARTMENT OF NATURAL AND CULTURAL RESOURCES, AS RECOMMENDED BY THE DEPARTMENT |url=https://www.ncleg.gov/Sessions/2023/Bills/House/PDF/H168v6.pdf |website=ncleg.gov |publisher=North Carolina |access-date=21 July 2023}}

• Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000)
• Salerno v. City University of New York, 191 F. Supp. 2d 352 (S.D.N.Y. 2001)
• Hairston v. North Carolina Agricultural and Technical State University, 2005 WL 2136923 (M.D.N.C. 2005)
• De Romero v. Institute of Puerto Rican Culture, 466 F. Supp. 2d 410 (D.P.R. 2006)
• Marketing Information Masters v. The Trustees of the California State University, 522 F.Supp. 2d 1088 (S.D. Cal. 2008)
• Romero v. California Dept. of Transportation, 2009 WL 650629 (C.D. Cal. 2009)
• Jacobs v. Memphis Convention and Visitors Bureau, 710 F. Supp. 2d 663 (W.D. Tenn. 2010)
• Parker v. Dufreshne, 2010 U.S. Dist. LEXIS 64481 (W.D. La. 2010)
• Whipple v. Utah, 2011 WL 4368568 (D. Utah 2011)
• National Association of Boards of Pharmacy v. University of Georgia (11th Cir. 2011) – says CRCA could be justified by 14th Amendment but the case before it did not present a factually sufficient due process claim.
• Reiner v. Saginaw Valley State University et al (Thomas Canale), [https://cases.justia.com/federal/district-courts/michigan/miedce/2:2016cv11728/310927/50/0.pdf?ts=1521190070 E.D. Mich. March 15, 2018] (following other circuits in not entertaining a CRCA claim)
• [https://cases.justia.com/federal/district-courts/kentucky/kyedce/5:2012cv00369/71444/37/0.pdf?ts=1394110653 Coyle v. University of Kentucky], 2. F. Supp. 3d 1014 (E.D. Ky. March 4, 2014)
• Issaenko v. University of Minnesota, 57 F.Supp. 3d 985 (D. Minn. 2014)
• [https://cases.justia.com/federal/district-courts/indiana/insdce/1:2014cv01791/55301/32/0.pdf?ts=1440581531 Philpot v. WUIS/University of Illinois Springfield], S.D. Ind. Aug. 25, 2015.
• [https://cases.justia.com/federal/district-courts/ohio/ohsdce/1:2015cv00330/184169/22/0.pdf?ts=1453299647 Campinha-Bacote v. Regents of the University of Michigan], 2016 U.S. Dist. LEXIS 5958 (S.D. Ohio Jan. 19, 2016)
• American Shooting Center, Inc. v. Sefcor Int'l, 2016 U.S. Dist. LEXIS 96111 (S.D. Cal. July 22, 2016)
• [https://cases.justia.com/federal/district-courts/michigan/miedce/2:2015cv13560/305166/31/0.pdf?ts=1481024497 Alisa Wolf v. Oakland University], E.D. Mich. Dec. 5, 2016 (finding Chavez and Jacobs to be "highly persuasive")
• Nettleman III v. Florida Atlantic University, S.D. Fla. Jan. 5, 2017 (finding plaintiff did not state a complaint under the CRCA sufficient to abrogate state immunity, and noting the 5th Circuit's Chavez holding CRCA to be unconstitutional)
• [https://cases.justia.com/federal/district-courts/indiana/insdce/1:2016cv02463/68220/58/0.pdf?ts=1520674428 Bell v. Indiana University] (S.D. Ind. March 9, 2018)
• [https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-877.html Allen v. Cooper], (U.S. Supreme Court March 23, 2020)

• [https://www.worldipreview.com/news/scotus-considers-blackbeard-s-law-in-shipwreck-copyright-suit-18860 SCOTUS considers ‘Blackbeard’s Law’ in shipwreck copyright suit], World Intellectual Property Review
• [https://www.scotusblog.com/2019/11/argument-recap-justices-pillage-state-arguments-for-sovereign-immunity-for-copyright-infringement/ Justices pillage state arguments for sovereign immunity for copyright infringement], SCOTUS Blog
• [https://patentlyo.com/patent/2019/11/cooper-states-infringement.html Allen v. Cooper: Suing States for IP Infringement] Patently-O
• [https://www.plagiarismtoday.com/2019/11/04/blackbeards-revenge-sovereign-immunity-and-copyright/ Blackbeard’s Revenge: Sovereign Immunity and Copyright], Plagiarism Today
• [https://www.charlotteobserver.com/news/politics-government/article237019034.html How Blackbeard’s ship and a diver with an ‘iron hand’ ended up at the Supreme Court], Charlotte Observer
• [https://www.npr.org/2019/11/27/783303277/episode-955-pirate-videos Episode 955: Pirate Videos], Planet Money, NPR
• [https://www.govinfo.gov/content/pkg/FR-2020-06-03/pdf/2020-12019.pdf Sovereign Immunity Study: Notice and Request for Public Comment], U.S. Copyright Office
• [https://beta.regulations.gov/document/COLC-2020-0009-0001/comment Sovereign Immunity Study: Comments] U.S. Copyright Office
• [https://regproject.org/wp-content/uploads/Paper-Holding-States-Accountable-for-Copyright-Piracy.pdf Holding States Accountable for Copyright Piracy] Regulatory Transparency Project
• [https://www.copyright.gov/policy/state-sovereign-immunity/Sovereign%20Immunity%20Report%20final.pdf Copyright and State Sovereign Immunity], U.S. Copyright Office
• [https://www.escapistmagazine.com/blackbeard-copyright-law-states-rights-north-carolina-supreme-court/ Blackbeard Just Broke Copyright Law, and Now States Are the Pirates], The Escapist
• [https://ipwatchdog.com/tag/allen-v-cooper/ Allen v. Cooper], IPWatchdog
• [https://www.jdsupra.com/topics/allen-v-cooper/ Allen v. Cooper], JDSupra

• Eleventh Amendment to the United States Constitution
• Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank

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Category:1990 in American law

Category:United States federal copyright legislation

Category:101st United States Congress

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