I Can Do What I Want - What Are The Limits to State Immunity in the US on Copyright Infringement?

Many national governments, and indeed US states, have particular immunities when it comes to their legal liability. In the UK, for example, the Crown has sovereign immunity from civil claims, which prevents the Crown from being sued by individuals or companies (to put things very simplistically). Similar legislation exists in the US, and there have been efforts to pass legislation to stop the immunity held by States. With this in mind, what is the extent of this immunity with regards to copyright? Can States simply infringe copyright without any regard to the copyright holders, or would they have to face some accountability? Luckily the Supreme Court recently took on this case and handed down its judgment late last month.

The case of Allen v Cooper concerned videos and photographs taken by Mr Allen for the company Intersal Inc., which discovered the shipwreck of the Queen Anne's Revenge (the famous ship owned by the pirate Blackbeard) in 1996 outside of the coast of North Carolina. The wreck, under both federal and state law, belongs to North Carolina. Mr Allen documented the recovery operation over the course of a decade and registered the copyright in those works. The State of North Carolina then published some of Mr Allen's videos and photographs in 2013 on its website, to which Mr Allen objected to. The parties agreed on a settlement of the initial dispute, however, Mr Allen then alleged further infringements by the State through the publication of five of his videos online and in a newsletter. Subsequently, he sued the State for copyright infringement, with the matter ending up with the Supreme Court.

Generally, a federal court generally may not hear a suit brought by any person against a non-consenting State, although this bar is not enshrined in the US Constitution. However, the courts have allowed suits to be brought if two conditions are fulfilled: (i) Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit; and (ii) some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. In short, if there is legislation that repeals the States' immunity, which is permitted by the US Constitution, the suit can be brought against the State in question.

As set out by Justice Kagan (handing down the majority's decision), there is no question that the first requirement has been fulfilled. The Copyright Remedy Clarification Act of 1990 removed the States’ sovereign immunity in copyright infringement cases, and therefore it is possible, pursuant to Constitutional approval, that States could be sued for copyright infringement. The remaining question is whether Congress has the authority to pass the legislation.

After a very thorough discussion of the previous cases dealing with State immunity, the Supreme Court noted that Mr Allen will not be able to overcome the precedent set, where States cannot be sued for copyright infringement as matters stand.

The Court then moved onto discussing section 5 of the Fourteenth Amendment to the Constitution, which, can authorize Congress to strip the States of immunity. The abrogation has to be "appropriate" under section 5, which means that the abrogation must be "tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohibitions". Furthermore, the courts have held that the appropriate test for section 5 is that "...must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end" - to put differently, the courts have to consider both the nature and the extent of state conduct violating the Fourteenth Amendment.

Justice Kagan decided that the issue of copyright infringement didn't pass the above test. In the Court's view, the infringement of copyright by States is not a prevalent issue (consisting of only 12 cases), which left the balancing of the stripping of States immunity askew and not proportionate to the injury posed by State infringement. The Court did, however, leave the door open for Congress to pass laws in the future to abrogate States' immunity with regards to copyright infringement.

Ultimately, the Supreme Court dismissed Mr Allen's case and ruled that section 5 of the Fourteenth Amendment does not support the abrogation of States' immunity with regards to copyright infringement, and Mr Allen could not bring his infringement case against the State forward.

State or sovereign immunity cases don't come across very often, and it is always interesting to see the extent to which the courts will protect that immunity. The Court's approach to the proportionality of the possible injury with the stripping of the entire immunity seems sensible in this instance since governments should be given broader protections lest we see the dams break and a wave of cases being brought against States or governments. They shouldn't, by any means, be given carte blanche to do as they wish, but the stripping or specific immunities will need thorough and appropriate consideration in the future.

Retrospective - Linking to Trouble

In the days prior to BitTorrent technology, the primary source for any endeavoring online 'pirate' seeking to get their mitts on copyrighted content, was through direct links on websites leading to copies of any specific materials. Before the discussions over the possible liability of Internet Service Providers here in Australia, the issue of whether a website owner sharing links to infringing material (such as songs) would be authorizing the acts of copying that content by posting those links ended up in the Full Federal Court in late 2006.

An imagining of a potential MP3s4Free user

The case of Cooper v Universal Music Australia dealt with the website owned and operated by Mr. Cooper, aptly named "MP3s4Free.com". The site itself didn't host or contain any infringing materials, such as sound recordings, but did however have direct links (hyperlinks) to other sites providing those copies. The file was automatically downloaded to the user's computer once they had clicked the link on Mr. Cooper's site, transferring it from a different server. Although some of the content linked to on the site was legitimate, however overwhelmingly the content was illegal one way or another. Subsequently a number of record companies, including Universal Music, sued Mr. Cooper under the Copyright Act 1968 for the authorization of copyright infringement. 

The provision for the authorization of infringement hinges on whether the operator (Mr. Cooper in this case) has any power in preventing the infringement; the nature of the relationship between the two parties (Mr. Cooper and the user); and whether the operator (Mr. Cooper) took reasonable steps to prevent or avoid the infringement through his service. 

In deciding whether Mr. Cooper had the power to prevent any infringing acts through his website, the Court saw that he indeed did have the power to do so. The Court reached this conclusion in deciding that a person could be deemed to have had the power to prevent the act should they have had the ability to merely not do what was in their power or abilities to do (the posting or allowing the posting of links for example), yet instead did so through some calculated technical measures. What this means is that Mr. Cooper, in actively linking to infringing content, chose to do so and had the power to simply not to post those links on his site. The Court's reasoning is sound, even in its simplicity. If you have a choice between the knowing facilitation of potentially infringing acts, should you choose to do so, you clearly possess a power to prevent any acts occurring from your actions, yet ignore that ability. The intent and capabilities of the operator are imperative.

Should the relationship be one which does not seek to benefit the operator one way or another, it is more likely that there's no authorization on the face of things. The nature of the relationship between the operator and the users is one which is hard to specifically identify, however the Court did establish a relationship in its findings. At first instance (initial court proceedings in lower courts) the primary judge found that as Mr. Cooper's website was very "friendly" and allowed for easy access to the music files being downloaded, overall being very attractive to potential or current users. The more important aspect of this was the financial gain incurred by Mr. Cooper through advertisements on his website, giving the site a commercial aspect. The Court concluded that the nature was one where Mr. Cooper endeavored to benefit from the links to infringing material.

Don't click! 

Finally, did Mr. Cooper take any reasonable steps to prevent the infringing acts through his website? At the bottom of each page there was a link to a Disclaimer, stating that "when you download a song, you take full responsibility for doing so. None of the files on this site are stored on our servers. We are just providing links to remote files". Aside from the mentioned disclaimer, Mr. Cooper took no active part in preventing any acts; merely attempted to exonerate himself by passing the responsibility onto the users themselves. Rightfully so, the Court found that this was not adequate and the Disclaimer was merely a cosmetic touch and was not intended to have any real legal effect. Mr. Cooper was therefore held liable through the authorization of the copying of infringing material through his website.

Thinking ahead, how could one avoid liability through hyperlinks? Clearly it boils down to content filtration or other means of active or automatic prevention, and the reason for your linking. Should you not take active steps, such as through moderation, and complacently sit back and wait for your monthly AdSense check to fall through the letter box, you might be liable. Links in themselves are not bad and often websites welcome outside links to their content, but this can change according to the various Terms and Conditions set by each site. In the United States websites can potentially be protected under the Safe Harbor provisions (a nice example of which was discussed on this very blog), albeit for unknowing facilitation and potential activeness in the stopping of such acts when notified.