Frank Cullen
Former Vice President, U.S. Intellectual Property Policy, U.S. Chamber of Commerce


March 31, 2020


Last week, the Supreme Court handed down its decision in Allen v. Cooper, holding that Congress did not have the authority to revoke the sovereign immunity of states from copyright infringement lawsuits. While the result is disappointing and problematic in its practical effect, the U.S. Chamber’s Global Innovation Policy Center (GIPC) also sees some positive aspects to the decision and the concurrence of Justices Breyer and Ginsburg.

This decision is the latest in a long-running struggle between Congress and the Intellectual Property (IP) owners whose rights it is trying to protect, on one side, and states and the Supreme Court on the other. As the Court acknowledged in its decision today, “The slate on which we write today is anything but clean.”

For decades, it was assumed that states were liable for copyright and patent infringements they might commit. And when court precedents evolved to require Congressional abrogation of state sovereign immunity to be explicit, Congress acted quickly to provide clear statements of such in both the Copyright Act and the Patent Act. In 1999 the Court raised the bar again, holding in Florida Prepaid Ed. Expense Board. v. College Savings Bank, the Patent Act’s purported abrogation of state sovereign immunity, was not within Congress’ power under the Copyright and Patent Clause in Article I of the Constitution, and that the power of Congress to do so under the 14th Amendment is applicable only in extreme circumstances.

Today’s decision indicates the Court felt bound to follow the 1999 cases, but even then, it seemed to recognize that its jurisprudence has not always been consistent, noting it was asserted that a “fundamental aspect of sovereignty constrains federal ‘judicial authority.’” And adding today, “But not entirely.” Further, Justices Breyer and Ginsburg were openly skeptical, “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss.”

Whatever the right approach to the Constitutional treatment of federalism and separation of powers, GIPC remains deeply concerned with the practical reality that copyright and patent infringements by states deprive right holders of their rights. And the effect of the Court’s continuing approach to state sovereign immunity harms creators and inventors. That is not a just outcome.

However, there is one other silver lining to today’s decision, and we plan to scream it from the rooftops. For years, some have sought to denigrate and belittle intellectual property rights with epithets like “government monopoly” or even liken it to “regulation.” Today the Supreme Court put those to rest, unambiguously holding “Copyrights are a form of property.” This should have been obvious to all, given that the Constitution speaks in the Copyright and Patent Clause of providing “the exclusive Right to their respective Writings and Discoveries.” And now we have it in black and white from the highest Court in the land.

After the 1999 ruling, Congress considered legislation to address state sovereign immunity in creative ways. It may do so again this time. Whatever the case and whatever the context, all future IP policy discussions should begin from the clear position that copyright and patent rights are property rights.

About the authors

Frank Cullen

Frank Cullen is former Vice President of U.S. Intellectual Property Policy.