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The Intellectual Property StrategistFeaturesCopyrightsIntellectual PropertyLitigationUnited States Supreme Court

Supreme Court Rules States Cannot Be Involuntarily Liable for Copyright Infringement

By Shaleen J. Patel
May 01, 2020

The U.S. Supreme Court has ruled that individual states are free to commit copyright infringement. The Court held that Congress attempted to abrogate states' sovereign immunity in an unconstitutional manner when enacting the Copyright Remedy Clarification Act of 1990 (CRCA) (codified in 17 U.S.C. §511). See, Allen v. Cooper, No. 18-877, slip op. at 4 (Mar. 23, 2020). Sovereign immunity through the Eleventh Amendment has yet again proven to be a powerful tool for states to avoid intellectual property infringement liability, where private actors would not be so fortunate. Although Congress said that "[a]ny State … shall not be immune, under the Eleventh Amendment … or any other doctrine of sovereign immunity" from copyright infringement and that remedies available for such infringement would be "available … to the same extent as such remedies are available for such a violation … against any public or private entity," the Court ruled that this language impermissibly abrogated states' rights. 35 U.S.C. §511.

Speaking for the court, Justice Kagan found no juridical difference between Congress's similar abrogation of state sovereign immunity with respect to patent infringement, which the Court struck down two decades earlier in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). Neither Congress's Article I powers under what the Court has dubbed the "Intellectual Property Clause" (U.S. Const. Art. I, §8, cl. 8), nor Section 5 of the Fourteenth Amendment, properly grant Congress the power to abrogate sovereign immunity from copyright or patent infringement.

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