In March, the U.S. Supreme Court decided Allen v. Cooper, Governor of North Carolina and ruled that States cannot be hauled into federal court on the issue of copyright infringement.
The decision is basically an extension of the Court’s prior decision on whether States can be sued for patent infringement in federal court (also no), and Justice Kagan writes for the unanimous Court in saying, “Florida Prepaid all but prewrote our decision today.”
But one of the most interesting discussions in the opinion is about when, perhaps, States might be hauled into federal court for copyright infringement under the Fourteenth Amendment prohibition against deprivation of property without due process:
All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. See Fox Film Corp. v. Doyal, 286 U. S. 123, 128 (1932). And the Fourteenth Amendment bars the States from “depriv[ing]”a person of property “without due process of law.” But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of property. See Daniels v. Williams, 474 U. S. 327, 328 (1986). So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. See id., at 334, n. 3 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” See Hudson v. Palmer, 468 U. S. 517, 533 (1984). That means within the broader world of state copyright infringement is a smaller one where the Due Process Clause comes into play.
Slip Op. at 11.
Presumably this means that if North Carolina set up a free radio streaming service with Taylor Swift songs and refused to pay any royalties, they might properly be hauled into federal court. But absent some egregiously intentional or reckless conduct, States remain sovereign in copyright disputes.