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The Supreme Court building

Supreme Court Rules No Protection from State Copyright Infringement

On March 23, the Supreme Court ruled Congress didn’t have the authority to abrogate or take away the states’ sovereign immunity from copyright infringement via the Copyright Remedy Clarification Act of 1990 (CRCA). The decision in Allen v. Cooper was unanimous. For creators who have seen their copyright repeatedly infringed by state agencies, ruling is a setback.

Filmmaker Rick Allen had sued the State of North Carolina for infringing the copyright of his video footage and stills of the wreck of Blackbeard’s pirate ship, Queen Anne’s Revenge. Allen cited the CRCA in his case and won in lower court. However, the State appealed in the Fourth Circuit, and the court found for the State, holding that the CRCA is unconstitutional.

Back in August 2019, the Guild signed on to an amicus brief in the case. The amicus brief argued thay, based on decisions like of the Fourth Circuit, state actors assume they can willfully infringe copyrights, knowing that the copyright holders have little recourse to take action. The result is that creators are deprived of licensing income, can’t guarantee an exclusive license to their works, and see their copyright devalued.

The amicus brief also argued that the courts interpret copyright as an “engine of free speech.” The right of free speech also includes the right to not speak. Invalidating the CRCA would allow states to use copyrighted material to promote values or actions the copyright holder might not hold, effectively compelling them to speech they may not agree with.

However, in its ruling, the Supreme Court ruling affirmed the Fourth Circuit and held that the CRCA in unconstitutional. In their opinion, Justice Kagan cited Supreme Court precedent (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank):

Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below.

The opinion did end with a ray of hope for creators and copyright holders. Justice Kagan points out that Congress could pass a valid copyright abrogation law, taking into consideration the precedents cited in this case, and linking the “scope of abrogation to the redress of prevention of unconstitutional injuries.” Justice Kagan continued:

That kind of tailored statute can effectively stop States from behaving as copyright pi­rates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.

The ball is now in Congress’ court.



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