Under the Eleventh Amendment of the Constitution, States enjoy sovereign immunity from a wide variety of suits. But there are exceptions, including congressional abrogation of immunity. Twenty years ago, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), the Court struck down the Patent Remedy Act that abrogated state sovereign immunity from patent infringement:
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity, 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 in Federal court by any person, including any governmental or nongovernmental entity, for infringement of a patent under section 271, or for any other violation under this title.
35 U.S.C. § 296(a); see also id. § 271(h).
The Court in Florida Prepaid held that Congress did not have the authority to abrogate immunity from patent infringement under various provisions in the Constitution, including the Patent Clause, Commerce Clause, and the Fourteenth Amendment. Art. I, § 8, cl. 8; id. cl. 3; and § 5 of the 14th amend.
This week, the Court granted to certiorari in Allen v. Cooper, No. 18-877 to consider the abrogation issue, again, in the context of copyright law. In this case, Mr. Allen sued North Carolina for infringing his copyright in a documentary film related to the salvage of Blackbeard's ship, Queen Anne's Revenge. The District Court denied the State's motion to dismiss for sovereign immunity, relying on the 1990 Copyright Remedy Act, which is substantially identical to the Patent Remedy Act:
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, 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 in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.
17 U.S.C. § 117(a). In doing so, the District Court broke with the Fifth Circuit and several district courts throughout the country that have ruled the statute is invalid.
The Fourth Circuit reversed. The Fourth...
