The Supreme Court yesterday did something doubly unusual: it issued an opinion rejecting a state's claim to sovereign immunity and did so in a unanimous opinion, written by Justice Scalia. The case is Goodman v. Georgia. The state of Georgia has been one of the most extreme advocates of sovereign immunity, and I had first hand experience with it in a copyright infringement suit I filed against the state on behalf of a software company that designed its web portal.
The Court's decision yesterday refers to its infamous Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) opinion, which seemingly spelled the end of most efforts to hold states accountable in money damages for copyright and patent infringement. I have long been scandalized by the Court's sovereign immunity case law, which I regard as a power grab at the expense of Congress, and one in which, Peanuts like, a football is put down only to be removed at the last minute. When I worked for Congress, staffers fantasized about passing the same legislation repeatedly, each time curing each of the Court's phony excuses for striking the legislation down (e.g., not enough witnesses, not enough evidence of infringement by states). Whether this would have been an effective tactic or not (given Marbury v. Madison), we at least would have been in the Court's face and would have been telling it we were an equal branch of government that would not be lectured to.
Yesterday's decision offers no solace to intellectual property owners, alas. The basis for the decision was the Court's belief that whatever may be the scope of the "prophylactic" enforcement powers of Congress under Section 5 of the 14th Amendment (something there is a split about), there is no disagreement that Section 5 can authorize Congress to provide for money damages against states for direct violations of the substantive provisions of 14th Amendment. In the case at bar, since the 14th Amendment incorporates the 8th Amendment's ban on cruel and unusual punishment, a claim for violation of the 8th Amendment provided a constitutionally sound basis for a damages claim.
Copyright infringement actions, however, seek to vindicate only statutory rights, and thus do not benefit from yesterday's decision.