Allen v. Cooper transformed copyright by shifting away from the historical Constitutional
underpinnings of copyright within our Federal system and by denying Congressional authority over its design in favor of state immunity. In this article, we argue that Allen is wrongly decided. In particular, the Allen Court made three key errors: First, the Court failed to consider the constitutional era historic record regarding the role of copyright and the balance between state and national government action. We argue that both the text and structure of the Constitution as well as the pertinent historical materials confirm that intellectual property law, particularly copyright and patent law, represent an exclusive realm reserved for the federal government.
In its analysis, the Court also made a second error—following stare decisis when unwarranted. In particular, the Allen Court concluded it was bound by its prior decision in the parallel patent case of Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank. Although copyright and patent do share some common core features, the historical record regarding a national copyright policy is particularly strong. Following the Federal Convention, individual states generally did not step-forward with further grants of copyright protections and several affirmatively repealed their own preexisting copyright statutes. In our view, this evidence tilts toward a conclusion that the States agreed “to be subordinate to the government of the United States” in the copyright space.
Third and last, in its analysis of contemporary records justifying Congressional action, the Court stepped into a legislative role rather than providing deference to Congressional reasoning and decision making. The message of the Allen Court is clear: Congress cannot make the states liable even for blatant and willful copyright misdeeds without compelling evidence of need. As part of its decision, the court also suggested the possibility of shifting goalposts in its Fourteenths Amendment analysis. Even if Congress complies with the standard announced in Allen and provides evidence to justify the abrogation of sovereign immunity, we believe the Court may still strike down the Act as still lacking in the court’s eye or perhaps by acting upon doubts expressed by Justice Thomas as to whether “copyrights are property within the original meaning of the Fourteenth Amendment's Due Process Clause.”
Allen was born out of the unholy union of right-leaning Justices, who are not shy of resorting to “aristocratic judicial Constitution-writing” to promote their New Federalist agenda, and left-leaning Justices, who hope to establish stare decisis as a unifying force to preserve their more liberal precedents. Allen’s true victims are copyright owners whose rights are chipped away.
