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Copyright Case Could Chart a Return Voyage to the Supreme Court

In 2020, the Supreme Court in Allen v. Cooper held that a copyright statute did not strip the State of North Carolina of its sovereign immunity to a copyright infringement action lodged by Rick Allen and his company Nautilus Productions, LLC.

But wait, there's more. 

On remand, the district court in a 2021 decision observed that another doctrine, called "case by case abrogation," was still available to the plaintiffs to challenge the State's sovereign immunity. The district court revived the plaintiffs' constitutional claims and allowed them to amend their complaint.

On February 8, 2023, the plaintiffs filed a second amended complaint, alleging 22 new acts of copyright infringement and doubling the number of counts previously asserted. So despite the Supreme Court's decision, the plaintiffs' case is now back with a vengeance.

These latest pleadings could very well lead to another Supreme Court decision, because they include combined issues of copyright and constitutional law that have been virtually untested in precedent. Case law might therefore now more thoroughly address alleged acts of copyright piracy by a state. 

Grab your telescope and gaze outwardly for what lies ahead.

“The Second Amended Complaint reflects a substantial intersection of copyright and constitutional laws on issues that are far from settled, foreshadowing that, barring litigation settlement, we may someday see an Allen v. Cooper II Supreme Court decision.”


cicero_michael, articles, ip litigation

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