This week, the Copyright Alliance submitted comments to the Copyright Office in response to its Notice of Inquiry (NOI) for public comment on the extent to which copyright owners experience infringement by state entities that are largely immune to copyright claims due to the doctrine of state sovereign immunity. To assist the Copyright Office in its study, the Copyright Alliance launched a public survey soliciting feedback from copyright owners on their experiences with infringement by states and conducted interviews with a number of individual creators and organizations that have encountered state infringement. As a result of this research, compelling evidence was compiled showing that remedies against state infringement are inadequate or non-existent and that state copyright infringement is a frequent and damaging occurrence that will increasingly threaten the goals of the copyright system unless corrected.
The responses to the Copyright Alliance survey, which asked many of the same questions listed in the Copyright Office NOI, revealed that creators and copyright owners have encountered thousands of instances of infringement by state entities, resulting in lost revenue of countless millions of dollars. Over the brief time that the survey was open, 115 respondents answered that they had experienced infringement by a state or state entity-with the vast majority experiencing multiple infringements. Of the respondents who said they have encountered state infringement, 52% described multiple instances of state infringement, using words such as “countless,” “at least a dozen,” “thousands,” and “infinitely many.”
The survey asked respondents to select the year (between 1976 and 2020) that they discovered infringement by a state entity, and although infringement was reported as far back as 1978, a trend of increased infringements is apparent, starting in the mid-to-late 90s and increasing yearly through the 2000s and 2010s, with the most instances occurring in 2019. The consistent rise over the last twenty years corresponds not only to the growth of the internet, but with a pair of cases of at the turn of the century that challenged the validity of the Copyright Remedy Clarification Act (CRCA)-a 1990 law that abrogated state immunity from copyright claims-and effectively opened the door to a new era of unchecked state infringement.
The Copyright Alliance survey also asked respondents to identify the type of work(s) infringed, allowing them to choose as many categories as appropriate from a list of fourteen. Photographs were the most commonly infringed works, with written materials-such as books, poems, blogs, or articles-coming in second place. Instances of infringement involving sound recordings, television programs, and motion pictures were also identified, as well as some less-common infringements involving other categories shown in the figure below.
The states in which alleged infringement was most frequently reported were Texas, New York, California, and Illinois, but instances of infringement were reported in all fifty states. When asked what type of state entity infringed, an overwhelming majority of respondents identified state universities or institutions of higher learning. Other state entities identified by respondents included state tourism boards, departments of natural resources, and museums.
Importantly, 68% of copyright owners responded that they believe they’ve lost revenue or licensing opportunities due to state infringement. Many of the respondents went on to describe the losses they incurred, including lost book sales, lost subscription and licensing fees for photographs and video footage, and also more intangible losses, such as careers cut short due to lost revenue and time spent trying to stop the infringement.
State Copyright Ownership
One of the glaring injustices related to state sovereign immunity is the fact that state entities continuously reap the benefits of the copyright system by registering and enforcing their own copyrights while at the same time enjoying immunity from monetary damages in infringement claims. To help show the extent to which state entities own copyrights, the Copyright Alliance conducted keyword searches using the Copyright Office’s public catalog of registrations. Searches were run using the “Name Claimant” option that combined keywords, such as “university,” “department,” “hospital,” “commission,” and many others, with the names of large and heavily populated states, such as New York, Texas, and California.
The keyword search that returned the most results in each case was the state name combined with “university.” For the state of Texas, there were 6,095 registered works, with a variety of entities associated with the University of Texas, Texas A&M University, Texas Tech University, and other public institutions of higher education listed as the copyright claimant. Running the same search for the state of New York returned 9,994 registered works, and a state of California search returned over 10,000 registered works. While additional research should be done to explore the scale of state copyright registrations, the results are indicative of states’ reliance on the copyright system to register and protect works.
In addition to the survey, interviews were conducted with a number of Copyright Alliance members and individual creators whose stories provide insights into increasingly harmful instances of state infringement and the inadequacy of available remedies. The comments detail the experiences of photographers, authors, documentary filmmakers, and other copyright owners, all of whom have encountered infringement by state entities over the past twenty years.
While the specifics of the individuals’ experiences varied, a number of common themes emerged. Nearly all of the creators interviewed said that they had encountered infringement by state school districts, universities, or other institutions of higher learning-and many of them identified infringement by these educational entities in more than one state. The creators also noted that they do not actively monitor for infringement and found out about the unauthorized uses by accident, which indicates the amount of infringement identified is only the tip of the iceberg.
All of the individuals interviewed pursued claims against the infringing state entities, resulting in sometimes protracted legal battles that cost hundreds of thousands of dollars of their own money. In addition to money spent on lawsuits, lost profits, and spoiled licensing opportunities, the creators spoke of the time lost attempting to monitor for and stop infringement-time that should have been spent on creative endeavors.
Finally, the creators all expressed deep frustration with a copyright system that is allowing state entities to infringe without meaningful consequence and thereby robbing them of the exclusive rights guaranteed by copyright law. For best-selling author Dr. Keith Bell, the experience of feeling powerless to control his works and combat infringement led directly to his decision to stop writing. While it’s impossible to measure the cultural losses incurred as a result of those who have abandoned creative pursuits due to overwhelming state infringement, these losses are completely counter to the goals of the copyright system to incentivize the creation of new works.
Lack of Adequate State Remedies
In response to the Copyright Office NOI, the Copyright Alliance also looked into the availability and adequacy of state remedies to address the needs of copyright owners. Our research, combined with the survey results and creator interviews, revealed that the availability of state remedies is limited due to a number of issues, including federal preemption of state claims, the absence of tested causes of action under state law, and immunity from suits in their own courts that states enjoy as a result of statutory or constitutional provisions. The patchwork of varying state laws is also testament to the incapability of states to provide the type of uniform protection traditionally afforded copyright owners under federal law.
The Copyright Alliance’s research also found that injunctions, while theoretically available to copyright owners when confronted with state infringement, are neither an adequate remedy nor an effective deterrent to infringement. Not only can they be prohibitively expensive, but injunctions offer only prospective relief and do nothing to remedy past injury. Injunctions have been described by experts as a “poor substitute” for the recovery of damages, and by themselves do not allow copyright owners to obtain the complete relief otherwise provided for under the Copyright Act.
Recommendation for Abrogating State Sovereign Immunity
The evidence gathered by the Copyright Alliance shows that instances of state infringement have increased exponentially over the twenty years since the validity of the CRCA was thrown into question, and copyright owners now find themselves navigating an uncertain system comprised of inadequate remedies that deprive them of the exclusive rights guaranteed to them under Section 106 and Section 1201 of the Copyright Act. In the Supreme Court’s recent Allen v. Cooper decision, the Court laid out a path for legislative action, suggesting that if Congress can develop a legislative record that demonstrates the necessary evidence of unconstitutional state conduct and link the scope of its abrogation to the redress or prevention of unconstitutional injuries, abrogation of state sovereign immunity would be appropriate pursuant to Section 5 of the Fourteenth Amendment. Based on the findings of our study and information that other commentators will provide to the Copyright Office, the Copyright Alliance believes there is sufficient evidence to support legislation following the Court’s guidance in Allen v. Cooper that would abrogate state sovereign immunity in copyright infringement cases.