On March 23, the U. S. Supreme Court unanimously held in Allen v. Cooper, No. 18-877, that states have sovereign immunity from claims of copyright infringement, and that 17 U.S.C. § 511, which purports to waive that immunity, is unconstitutional.
The majority opinion by Justice Kagan (for seven justices) emphasized stare decisis in holding that the case was not meaningfully different from Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U. S. 627 (1999), in which the U.S. Supreme Court held 5-4 that the Patent and Plant Variety Protection Remedy Clarification Act was unconstitutional.
In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U. S. 627 (1999), the Court held 5-4 that although patents are “property,” the Patent and Plant Variety Protection Remedy Clarification Act was not the type of “appropriate legislation” authorized by § 5 of the Fourteenth Amendment.
All of the Courts of Appeals that had addressed the issue had concluded that the Copyright Remedy Clarification Act was unconstitutional under Florida Prepaid, and that states had sovereign immunity to claims of copyright infringement.