Allen v Cooper: The Epilogue: The Copyright Office Embarks on a Journey to Determining Just How Bad the State Copyright Infringement Problem Is.

Supreme Court Columns Black and White

On May 29, the U.S. Copyright Office issued a Notice of Inquiry (NOI) for public comment on the extent to which copyright owners experience infringement of their works by states or state entities that are largely immune to copyright claims. The notice comes in response to a request made by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) in a letter to the Copyright Office asking it to conduct the study so that Congress can evaluate whether legislative action is needed to adjust a sovereign immunity doctrine that has resulted in increased instances of state infringement in recent years. In its notice, the Copyright Office is asking the public to provide written comments in response to a number of questions on state copyright infringement. To assist the Copyright Office with its study, the Copyright Alliance created a survey soliciting feedback from creators and copyright owners.

What prompted Senator Tillis’s and Leahy’s letter and the Copyright Office study was the Supreme Court’s March 23rd decision in Allen v. Cooper, which unanimously held that the Copyright Remedy Clarification Act (CRCA) of 1990 does not validly abrogate state sovereign immunity. State sovereign immunity is a legal doctrine derived from the Eleventh Amendment that limits copyright owners’ ability to sue states in federal court without the state’s consent, and it has been invoked by states and state entities to avoid liability for copyright infringement. But in the late 1980’s, a Copyright Office study found that “copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court,” and Congress relied on its Article I, Sec. 8, cl. 8 (the Copyright Clause) powers to sign the CRCA into law and thereby allow copyright owners to override state sovereign immunity. It’s important to note that in enacting the CRCA, Congress did not rely on its powers under ¤5 of the Fourteenth Amendment, which allows Congress to adopt legislation to ensure that a state cannot deprive a person of property without due process of law nor deny a person the equal protection of the laws.

But while the CRCA was well intentioned and meant to provide copyright owners with adequate remedies when confronted with state infringement, it wasn’t long until a series of cases called into question it’s constitutionality. In 1996, the Supreme Court in Seminole Tribe of Florida v. Florida held that Congress cannot use its Article I powers to abrogate state sovereign immunity. Three years later, the Supreme Court in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank voided a patent abrogation bill, again holding that Congress could not abrogate state sovereign immunity pursuant to its power under either Article 1 or ¤ 5 of the Fourteenth Amendment. A year later, the Fifth Circuit in Chavez v. Arte Publico Press found the CRCA unconstitutional in light of Florida Prepaid.

In the twenty years since Chavez, state infringement cases have been on the rise. While the Supreme Court held unanimously in Allen v. Cooper that the CRCA cannot be sustained under either Article I, ¤8, cl, 8 or ¤5 of the Fourteenth Amendment, it recognized the inequities and harm associated with allowing states to infringe copyrights with impunity. The decision states that “something is amiss” with the current state of sovereign immunity and suggested that Congress consider creating a statute that can prevent “States from behaving as copyright pirates.”

In laying out a path for legislative action, the Supreme Court made clear that its decision “need not prevent Congress from passing a valid copyright abrogation law in the future.” The opinion seems to suggest 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 pass muster pursuant to ¤5 of the Fourteenth Amendment.

With the ball thrown from the Supreme Court to Congress, leaders of the Senate IP Subcommittee have now effectively tossed the state sovereign immunity inquiry to the Copyright Office. In an effort to assist the Copyright Office and Congress in establishing the record that the Supreme Court says is needed, the Copyright Alliance has increased its own efforts to collect public comments by launching a state sovereign immunity survey. By collecting data and anecdotal evidence through the survey and direct outreach to copyright owners and creators, the Copyright Alliance intends to show the extent to which state infringement is a problematic occurrence and that sovereign immunity must be reconsidered in light of its harm.

The Copyright Alliance is interested in collecting responses from as many creators and copyright owners before the survey’s deadline on Friday, August 7th. Any questions regarding the survey or requests for additional information on the Copyright Office’s sovereign immunity study can be sent to, or directly contact the Copyright Alliance’s VP of Legal Policy and Copyright Counsel, Kevin Madigan. Public comments in response to the Copyright Office’s NOI are due no later than Wednesday, September 2nd.

Photo Credit: trekandshoot/iStock

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