Since 1998, petitioners Frederick Allen and his production company Nautilus Productions, LLC, have produced videos and images of the shipwreck of Queen Anne’s Revenge, the flagship of the infamous pirate Blackbeard, and they have registered those works with the U.S. Copyright Office.  In 2013, petitioners alleged that North Carolina infringed those copyrights by posting their works online without their permission.  North Carolina reached a settlement with petitioners and agreed not to violate their copyrights in the future.  Petitioners alleged, however, that North Carolina continued to infringe their copyrights and that it even passed a state law declaring their works matters of public record.  In 2015, petitioners sued North Carolina for copyright infringement in federal district court.  North Carolina responded that the suit was barred by state sovereign immunity under the Eleventh Amendment and that Congress had exceeded its constitutional authority in enacting the Copyright Remedy Clarification Act of 1990 (CRCA), which purports to abrogate state sovereign immunity and render states subject to suit for copyright infringement.  The district court disagreed and denied North Carolina’s motion to dismiss the lawsuit.  The Fourth Circuit reversed, holding that the CRCA’s abrogation of state sovereign immunity was unconstitutional.  Petitioners then filed a petition for a writ of certiorari with the Supreme Court, which granted review in June 2019.

CAC filed an amicus brief in support of petitioners arguing that Congress validly abrogated state sovereign immunity in the CRCA, rendering North Carolina subject to suit for copyright infringement.  Our brief reminded the Court that Section 5 of the Fourteenth Amendment, by design, grants Congress broad authority to enact “appropriate legislation” to enforce that Amendment’s guarantees, and we explained that Section 5’s text and history confirm the substantial breadth of Congress’s enforcement authority.  We argued that Congress’s decision to abrogate state sovereign immunity in the CRCA falls well within that authority.  First, we argued that the CRCA validly abrogates state sovereign immunity insofar as it prohibits conduct that actually violates the Fourteenth Amendment, and petitioners alleged such conduct in this case—the deprivation of their due process rights and the taking of their intellectual property without just compensation.  Second, and more broadly, we contended that the CRCA is constitutional across the board and that its validity is particularly clear in the class of cases involving states’ intentional copyright infringement.  In other words, the CRCA is a “congruent and proportional” response to a history of unconstitutional conduct by states that Congress sought to remedy and deter, as the Supreme Court requires for valid Section 5 legislation.  Finally, we argued that the Court should reject the suggestion that the CRCA is not valid legislation under Section 5 simply because Congress, in unequivocally stating its intent to abrogate state sovereign immunity, did not also specify that Section 5 was the basis for its abrogating authority.  Thus, we urged the Court to reverse the Fourth Circuit’s judgment and rule in favor of petitioners.

The Court affirmed the Fourth Circuit’s judgment, holding that Congress lacked authority to abrogate state sovereign immunity from copyright infringement suits under the CRCA. While the Court recognized that Congress plainly sought to abrogate immunity in the CRCA, it disagreed that Congress had the constitutional power to do so. The Court relied heavily on its previous decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which held that Congress lacked authority to abrogate state sovereign immunity from suits under the federal Patent Remedy Act. The Court determined that that decision “compel[led] the same conclusion” here.

In reaching this conclusion, the Court has wrongly limited Congress’s authority to enact “appropriate legislation” to enforce Section 5 of the Fourteenth Amendment and protect individuals from constitutional violations by the states.