The Supreme Court decided that states cannot be sued for copyright infringement due to their “sovereign immunity” in a decision that was entitled “Allen v. Cooper” on March 23, 2020. Sovereign immunity is a legal doctrine that literally means that “the king can do no wrong,” which means that a reigning monarch cannot be sued in court. In the U.S., the federal government and each of the states represents a sovereign. As a result, the federal government and the state government, with some exceptions, cannot be sued in federal court unless a statute has been passed that waives the government’s sovereign immunity.

The case involved copyrights directed to videos relating to a shipwreck of the pirate Blackbeard’s flagship in North Carolina. The State of North Carolina uploaded those videos to its website without permission from the copyright owner. The Supreme Court ultimately decided that North Carolina could not be sued for copyright infringement due to sovereign immunity.

The Allen decision was not surprising because the Supreme Court held that states cannot be sued for patent infringement over 20 years ago in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). The statutes that purport to waive sovereign immunity for patent infringement and for copyright infringement are very similar. However, an intervening Supreme Court decision recognized an exception to a state’s sovereign immunity in bankruptcy proceedings. See Central Va. Community College v. Katz, 546 U. S. 356, 359 (2006).

The Supreme Court considered the bankruptcy exception and an argument under the Due Process Clause before concluding that it had to follow the precedent set in the Florida Prepaid decision.

The decision is unfortunate for copyright owners because states would seem to have a “license” to commit copyright infringement. However, the decision indicates that such instances of states actually infringing copyrights are rare.

Additionally, footnote number 9 of the Florida Prepaid decision indicates that patent holders have other remedies in Florida for patent infringement, which include the ability to request compensation through the legislature or the ability to seek relief for a “taking” through the courts. It is possible that some states have provided copyright owners with similar remedies for copyright infringement.