Allen v. Cooper: Raising the Flag of Sovereign Immunity in the Shifting Seas of Copyright

Will R. Gallagher

The expansion of maritime trade in the mid-1600s sparked the “Golden Age of Piracy,” when fearless privateers plundered the high seas for fame and fortune. One of the most infamous pirates of this era, Blackbeard, left plenty of both for the history books. As traditional piracy has faded from our shores, digital piracy has largely taken its place. But no pirate legend or sea shanty could have foretold that Blackbeard’s ship would one day be at the center of a stunning decision that condones modern piracy of citizens’ copyrights, as long as the infringement is committed by a state. 

In Allen v. Cooper, the United States Supreme Court considered whether the Copyright Remedy Clarification Act (“CRCA”) validly abrogated state sovereign immunity from copyright infringement suits. Relying on a convoluted interpretation of the state sovereign immunity doctrine, the Court held that neither Article I nor the Fourteenth Amendment could anchor the law. In the Court’s view, the CRCA lacked “congruence and proportionality” between its intended remedy and the perceived record of state misconduct. The decision completely bars infringement remedies for copyright owners whose works have been commandeered by a state, leaving them stranded without recourse until Congress can soon muster up a more narrowly tailored statute. Regardless of the historical record or degree of intent, allowing states to skirt liability for copyright infringement subverts the fundamental goals of the copyright system to promote and protect artistic expression.