Last week, the Copyright Office released a report on Copyright and State Sovereign Immunity, concluding its year-long study on the topic. Sovereign immunity is a doctrine that makes states and state entities immune from lawsuits under federal law in some cases. Congress sought to eliminate sovereign immunity in the copyright context in a 1990 federal law, which was overturned by a 2019 Supreme Court decision. In response, Senators Leahy and Tillis asked the Copyright Office to conduct a study to determine whether copyright infringement by state entities is an ongoing problem warranting a new legislative remedy. The report is a culmination of that effort.
Background
State sovereign immunity immunizes states and state entities—like state government agencies, public hospitals, and state universities—from lawsuits under federal law without their consent, with roots in the Eleventh Amendment to the U.S. Constitution. But state sovereign immunity is not absolute, and can be modified or eliminated in some contexts. In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which sought to eliminate state sovereign immunity with regards to copyright claims, known as abrogation, under the authority of the Intellectual Property Clause of the Constitution.
The validity of the CRCA was recently examined by the Supreme Court in Allen v. Cooper. The case concerned the state of North Carolina’s use of copyrighted images of a pirate ship found off the coast without permission from the photographer rights holder. The Court held that Congress lacked the authority to abrogate sovereign immunity under the Intellectual Property Clause, making the attempt to do so in the CRCA invalid. The Court also noted that Congress could have abrogated state sovereign immunity with regard to copyright claims under its 14th Amendment powers, but that the way it did so with the passage of the CRCA did not meet the requirements of its 14th Amendment powers. Under the 14th Amendment, Congress must enact legislative solutions that are “congruent and proportional” to the problems it seeks to address. The Court held that the record before Congress did not show the widespread, intentional infringement which would justify the total abrogation of sovereign immunity for copyright claims in the CRCA.
In response to the decision in Allen v. Cooper, Senators Leahy and Tillis asked the Copyright Office to investigate the topic of sovereign immunity for Copyright. In June 2020, the Copyright Office issued a notice of inquiry announcing a study to “evaluate the degree to which copyright owners are experiencing infringement by state entities” and the extent to which these infringements are “based on intentional or reckless conduct.” The Copyright Office also asked whether other remedies available to rights holders under state law were adequate to address the problem of infringement by state entities.
The Report
The Copyright Office’s new report is based on public comments, public roundtables, and its own legal research conducted during the course of its year-long study. In addition to reviewing the history of the study and relevant legal background, the report summarizes allegations of state infringement submitted in connection with the study, describes documentation provided by representatives of state entities regarding their policies for preventing and responding to allegations of infringement, and examines the extent to which copyright owners have other legal remedies against state entities if those state entities are immune to an infringement lawsuit. Finally, the Office sets out its recommendations for Congress in light of this study.
With respect to allegations of state infringement, the report reviews a total of 132 cases submitted by commenters which involve copyright infringement disputes brought against state entities, of which about 59% involve specific allegations of intentional infringement. The Office also summarized survey results from a survey distributed by Copyright Alliance, in which 115 of 657 respondents self-reported experiencing infringement by a state or state entity. The Office also summarized critiques of the survey, including its reliance on respondents’ subjective beliefs that infringement had occurred and the fact that it did not account for exceptions or defenses other than sovereign immunity that may have precluded liability. Indeed, a review of the raw survey data submitted by Copyright Alliance after the public roundtable reveals some misunderstandings about the scope of copyright and misplaced responses relating to previous court decisions in Authors Guild v. Google and Authors Guild v. HathiTrust, highlighting the unreliability of these self-reported allegations. Finally, the Office’s report discusses additional comments describing instances of alleged infringement by state entities relating to news content, music, computer programs, photographs and video, and books.
The report then turns to a discussion of state policies for preventing and responding to allegations of infringement, acknowledging that the record developed for the study indicates that many state universities and libraries have developed policies regarding the proper use of copyrighted material (though very little evidence was submitted regarding the policies of other state entities). First, commenters pointed to the Higher Education Opportunity Act (“HEOA”), which requires institutions receiving federal funding take certain measures to discourage copyright infringement. Commenters also highlighted institutional policies designed to prevent or respond to allegations of copyright infringement, educational efforts aimed at faculty, students, and other employees about copyright infringement, and cultural norms and expectations that reduce the likelihood of widespread intentional infringement by state educational institutions.
Copyright Office’s Recommendations
The Office concludes that, although the Office’s study surfaced a number of allegations of state infringement, it is far from certain that the record would be found sufficient to meet the constitutional test for abrogation. The Office acknowledges that few of the allegations that were surfaced in the study have been adjudicated on their merits. The Office further states that case law indicates that violations by states must be sufficiently numerous and serious to constitute a pattern of unconstitutional conduct, and that there is a material risk that a court could find even the “more robust record” of alleged infringement surfaced by this study insufficient to meet constitutional abrogation standards. That said, the Office indicated that, if Congress decides not to proceed with new abrogation legislation, the Office supports considerations of alternative approaches to abrogation to ensure that copyright owners have adequate relief if their copyrights are infringed by state entities.
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Authors Alliance will monitor any Congressional action regarding the abrogation of sovereign immunity in the copyright context, or alternative approaches to potential infringement by state entities, and we will continue to update members and readers as new developments emerge.