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When does the Fourteenth Amendment care about copyright infringement?

In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast.

But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years.

In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. But the State contracted with Intersal to take charge of the recovery activities.

Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge’s guns, anchors, and other remains. He registered copyrights in all those works.

The suit arisen from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials.

But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages.

North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States. But Allen responded that an exception to the rule applied because Congress had abrogated the States’ sovereign immunity from suits like his.

The Copyright Remedy Clarification Act of 1990 (CRCA or Act) provides that a State “shall not be immune, under the Eleventh Amendment or any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. And the Act specifies that in such a suit a State will be liable, and subject to remedies, “in the same manner and to the same extent as” a private party.

That meant, Allen contended, that his suit against North Carolina could go forward. The District Court agreed. Quoting the CRCA’s text, the court first found that “Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state.” And that abrogation, the court next held, had a proper constitutional basis.

On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. Because the appeal held a federal statute invalid, the Supreme Court granted certiorari.

Supreme Court’s analysis

No one disputed that Congress used clear enough language to abrogate the States’ immunity from copyright infringement suits. The CRCA provides that States “shall not be immune” from those actions in federal court. And the Act specifies that a State stands in the identical position as a private defendant – exposed to liability and remedies “in the same manner and to the same extent.”

The contested question is whether Congress had authority to take that step. Allen argued that it did, under either of two constitutional provisions. He first pointed to the clause in Article I empowering Congress to provide copyright protection. If that fails, he invoked Section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” the commands of the Due Process Clause.

In Allen’s view, Congress’s authority to abrogate sovereign immunity from copyright suits naturally follows. Abrogation is the single best way for Congress to “secure” a copyright holder’s “exclusive Rights” as against a State’s intrusion.

For an abrogation statute to be “appropriate” under Section 5, it must be tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohibitions. Congress can permit suits against States for actual violations of the rights guaranteed in Section 1.

And to deter those violations, it can allow suits against States for “a somewhat broader swath of conduct,” including acts constitutional in themselves. But Congress cannot use its “power to enforce” the Fourteenth Amendment to alter what that Amendment bars. That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to conduct courts have held Section 1 to proscribe.

For Congress’s action to fall within its Section 5 authority “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

On the one hand, courts are to consider the constitutional problem Congress faced – both the nature and the extent of state conduct violating the Fourteenth Amendment. That assessment usually (though not inevitably) focuses on the legislative record, which shows the evidence Congress had before it of a constitutional wrong.

On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Congress has gone beyond redressing actual constitutional violations.

An infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” That means within the broader world of state copyright infringement is a smaller one where the Due Process Clause comes into play.

Under Florida Prepaid, the CRCA must fail court’s “congruence and proportionality” test. The evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is equivalent – for both, that is, exceedingly slight. And the scope of the two statutes is identical – extending to every infringement case against a State.

It follows that the balance the laws strike between constitutional wrong and statutory remedy is correspondingly askew. In this case, as in Florida Prepaid, the law’s “indiscriminate scope” is “out of proportion” to any due process problem.

In this case the statute aims to “provide a uniform remedy” for statutory infringement, rather than to redress or prevent unconstitutional conduct. And so in this case the law is invalid under Section 5.

Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And the court held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record.

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