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Congressional _______
* Research Service
Informing the leg slative debate since 1914
Piracy, Old and New: Copyright, State
Sovereignty, and the Queen Anne's Revenge
October 23, 2019
If a state reproduces a copyrighted work without permission, can it be sued for copyright infringement? In
1990, Congress expressed its view that the answer to this question should be yes by enacting the
Copyright Remedy Clarification Act (CRCA). The CRCA, which is directed at remedying state copyright
infringement, provides that any State, and any [state] instrumentality, officer, or employee shall be
liable for copyright infringement in the same manner and to the same extent as any nongovernmental
entity. The CRCA further declares that states and their instrumentalities shall not be immune, under the
Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign
immunity, from suit.., for a violation of any the exclusive rights of a copyright owner.
Although the CRCA purports to abrogate state sovereignty immunity in copyright disputes, several lower
courts have invalidated the statute as unconstitutional. In Allen v. Cooper, the Supreme Court is set to hear
argument on whether the CRCA was within the constitutional powers of Congress. This Sidebar reviews
the current law of state sovereign immunity, the facts of Allen v. Cooper, the arguments advanced by the
parties, and the potential implications that the Court's decision may have for Congress.
The Law of State Sovereign Immunity
Because states are separate and independent sovereigns within the federal system, they generally cannot
be sued in state or federal court without their consent. Although Congress has some authority to abrogate
state sovereign immunity-that is, to enact statutes authorizing certain lawsuits against states-this
authority is fairly narrow. First, Congress's intent to abrogate state sovereign immunity must be
unmistakably clear from the statutory language. Second, even an unmistakably clear abrogation is
effective only when made pursuant to a valid grant of constitutional authority.
In the 1996 case of Seminole Tribe v. Florida, the Supreme Court held that Congress cannot abrogate state
sovereign immunity pursuant to its Article I powers, such as the Commerce Clause. Seminole Tribe
acknowledged, however, that Congress could rely on section 5 of the Fourteenth Amendment as a source
of power to abrogate state immunity. In subsequent cases, the Court established that Congress may rely on
the Fourteenth Amendment to abrogate state immunity only if there is a congruence and proportionality
between the constitutional injuries that the abrogation legislation seeks to remedy, and the means
Congress uses to redress them. In determining whether legislation is congruent and proportional (and thus
Congressional Research Service
https://crsreports.congress.gov
LSB10356
CRS Legal Sidebar
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