Piracy and State Sovereign Immunity

By:  Benjamin D. Bucinell

In 1718 Black Beard’s ship, Queen Ann’s Revenge, ran aground and sank about a mile of the shore of North Carolina. Black Beard’s ship belonged to North Carolina, but the videos and images of its recovery efforts were the intellectual property of Frederick Allen, who registered copyrights in all his works. When North Carolina used Allen’s images without permission, Allen sued the state. Due to State Sovereign Immunity, a federal court may not hear a suit brought by any person against a nonconsenting State. However, Congress attempted to abrogate this immunity in copyright cases by passing the Copyright Remedy Clarification Act of 1990 (CRCA, 17 U.S.C. 511(a)). Subsequently, Allen v. Cooper, No. 18-877, 589 US (2020), went to the Supreme Court to determine if Congress validly abrogated state sovereign immunity by passing CRCA.

In Florida Prepaid Postsecondary Educ Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999), the Supreme Court previously decided a similar question in relation to the Patent Remedy Act. The Patent Remedy Act is the analogous statute to CRCA, but pertains to patents. In Florida Prepaid, the Supreme Court held that the Patent Remedy Act did not properly abrogate state sovereign immunity. Since the Patent Remedy Act and the Copyright Remedy Clarification Act are similar in scope, the Supreme Court held in Allen v Cooper that the CRCA also did not abrogate state sovereign immunity.

Justice Breyer’s concurring opinion (joined by Justice Ginsburg), acknowledged that the precedent set by Florida Prepaid controls, and therefore, he agrees with the outcome on a legal basis. However, on a moral basis, Breyer believes that when a state is “proven to have pirated intellectual property, States must pay for what they plundered.” While Congress’s attempt to prevent such inequity was unsuccessful, perhaps they will again try to abrogate sovereign immunity, but in a manner that is constitutional.