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Addressing Copyright Piracy by States: Copyright Office Report

The Copyright Office has released its report on the infringement of copyrights by states. The report came on the heels of a Supreme Court decision, Allen v. Cooper, which spotlighted the issue.  In their report, Copyright and State Sovereign Immunity, the Office found that copyright infringement by states is unjustified and a significant concern for copyright holders. The Office recommends that Congress take action to address the problem through legislation.

Sovereign Immunity vs. Copyrights: Balancing Act

The Allen v Cooper Supreme Court decision in April, 2020 struck down as unconstitutional a 1990 law that sought to address copyright infringement by states.  The Copyright Remedy Clarification Act (CRCA) held states as liable for copyright infringement as non-governmental entities. However, state sovereign immunity is enshrined in the 14th Amendment of the Constitution and prevents a state from being sued in federal court or another state’s court without its consent.

In Allan v Cooper, Court found that CRCA unconstitutionally abrogated, or limited, state sovereign immunity. When CRCA was enacted, Congress did not record a pattern of state copyright infringements that rose to a level of constitutional violation of a right (copyrights). As the Copyright Office report explains, “To rise to that level, an infringement must be committed intentionally or at least recklessly; a negligent act does not suffice.” However, the Court challenged Congress to pass legislation abrogating state sovereign immunity if the legislative record demonstrated sufficiently a record of intentional copyright infringement by states.

Senators Tillis and Leahy of the Senate Judiciary Committee took the first step in meeting that challenge by asking the Copyright Office to conduct a study of copyright infringement by states. The Senators requested that the Office study both the extent of copyright infringement by states and the degree to which that infringement is “based on intentional or reckless conduct.” In preparation for the report, the Copyright Office issued a notice requesting feedback from stakeholders. The Office also examined 169 cases of copyright infringements reported by stakeholders and held a roundtable discussion on the issue.

“That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

A Substantial Record of Infringements

From their investigations, the Copyright Office reports that record of alleged copyright infringements by states is far greater than the record before Congress when CRCA was enacted in 1990. They also acknowledge that the mere existence of sovereign immunity means that many copyright holders are deterred from bringing infringement lawsuits against states. Other remedies available to copyright holders, such as photographer Jim Olive’s invocation of the takings clause , are limited. (In Olive’s case, the Texas Supreme Court rejected his use of the takings clause.)

Representatives from state agencies, primarily university and libraries, described in their comments to the Copyright Office that they have adopted policies and educational programs on copyrights. They also claimed that many claims of infringement fail to take into consideration exempted use of copyright works such as fair use. On the other hand, stakeholders such as the Copyright Alliance, the PLUS Coalition, and NPPA gave examples of infringement by a wide variety of state agencies, including athletic departments, tourism boards, radio stations, state bar associations, postsecondary educational institutions, and hospitals. The infringements occurred across a wide variety of creative works, such as photographs, books, tutoring materials, proprietary marketing materials, and video. (A comprehensive survey conducted by the Copyright Alliance in response to the notice found over 115 cases of copyright infringement reported in all 50 states.)

In their conclusion, the Copyright Office recommended that Congress take action to address copyright infringement by states.  However, they caution that the record of infringement by states may not be sufficient under the Supreme Court’s precedents to warrant abrogation of sovereign immunity. That balance did not exist when the Congress previously attempted to address sovereign immunity by enacting the CRCA. As Justice Kagan wrote in the Supreme Court decision, Congress now knows to link the scope of abrogation to the redress or prevention of unconstitutional injuries, and “enact a proportionate response”:

“That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Photo: © chameleonseye for iStockPhoto



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