Intellectual Property News and Reports

Held: Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA. Pp. 4–17. 

(a) In general, a federal court may not hear a suit brought by any person against a nonconsenting State. But such suits are permitted if Congress has enacted “unequivocal statutory language” abrogating the States’ immunity from suit, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56, and some constitutional provision allows Congress to have thus encroached on the States’ sovereignty. Congress used clear language to abrogate the States’ immunity from copyright infringement suits in the CRCA. Allen contends that Congress’s constitutional power to do so arises either from the Intellectual Property Clause, Art. I, §8, cl. 8, or from Section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” the commands of the Due Process Clause. Each contention is foreclosed by precedent. Pp. 4–6.

(b) The Intellectual Property Clause enables Congress to grant both copyrights and patents. In Allen’s view, Congress’s authority to abrogate sovereign immunity from copyright suits naturally follows, in order to “secur[e]” a copyright holder’s “exclusive Right” as against a State’s intrusion. But that theory was rejected in Florida Prepaid. That case considered the constitutionality of the Patent Remedy Act, which, like the CRCA, attempted to put “States on the same footing as private parties” in patent infringement lawsuits. 527 U. S., at 647, 648. Florida Prepaid acknowledged that Congress’s goal of providing uniform remedies in infringement cases was a “proper Article I concern,” but held that Seminole Tribe precluded Congress from using its Article I powers “to circumvent” the limits sovereign immunity “place[s] upon federal jurisdiction,” 517 U. S., at 73. For the same reason, Article I cannot support the CRCA. Allen reads Central Va. Community College v. Katz, 546 U.S. 356 to have replaced Seminole Tribe’s general rule with a clause-by-clause approach to evaluating whether a particular constitutional provision allows the abrogation of sovereign immunity. But Katz rested on the unique history of the Bankruptcy Clause. 546 U. S., at 369, n. 9. And even if the limits of Katz’s holding were not so clear, Florida Prepaid, together with stare decisis, would doom Allen’s argument. Overruling Florida Prepaid would require a “special justification,” over and above the belief “that the precedent was wrongly decided,” Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266, which Allen does not offer. Pp. 6–10.

(c) Section 5 of the Fourteenth Amendment allows Congress to abrogate the States’ immunity as part of its power “to enforce” the Amendment’s substantive prohibitions. City of Boerne v. Flores, 521 U.S. 507, 519. For Congress’s action to fall within its Section 5 authority, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id., at 520. This test requires courts to consider the nature and extent of state conduct violating the Fourteenth Amendment and to examine the scope of Congress’s response to that injury. Florida Prepaid again serves as the critical precedent. There, the Court defined the scope of unconstitutional patent infringement as intentional conduct for which there is no adequate state remedy. 527 U. S., at 642–643, 645. Because Congress failed to identify a pattern of unconstitutional patent infringement when it enacted the Patent Remedy Act, the Court held that the Act swept too far. Given the identical scope of the CRCA and Patent Remedy Act, this case could be decided differently only if the CRCA responded to materially stronger evidence of unconstitutional infringement. But as in Florida Prepaid, the legislative record contains thin evidence of infringement. Because this record cannot support Congress’s choice to strip the States of their sovereign immunity in all copyright infringement cases, the CRCA fails the “congruence and proportionality” test. Pp. 10–16. 

895 F.3d 337, affirmed.

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