August 31, 2021
Today the U.S. Copyright Office released a report entitled Copyright and State Sovereign Immunity. The report marks the completion of a study conducted by the Office in response to an April 2020 request by Senators Thom Tillis and Patrick Leahy following the Supreme Court’s decision in Allen v. Cooper. In that case, the court held that Congress had exceeded its authority under section 5 of the Fourteenth Amendment when it enacted legislation authorizing copyright infringement suits for damages against states. The senators asked the Office to determine whether there is sufficient basis for legislation abrogating state sovereign immunity when states infringe copyrights.
The report discusses comments provided by a wide variety of stakeholders in written submissions and during public roundtables held in December 2020. The report concludes that although many state entities, in particular universities and libraries, have adopted policies and programs to deter copyright infringement, the record of alleged infringement by state entities is significantly greater than when Congress last considered the issue. Given the demands of the legal standard, however, and some ambiguity in its application, the Office cannot conclude with certainty that the evidence would be found sufficient to meet the constitutional standard for abrogation. The report notes that if Congress decides not to proceed with abrogation legislation at this time, the Office would support consideration of alternative approaches to address this issue.
The full report is available on the Office’s website at copyright.gov/policy/state-sovereign-immunity/