Copyright and State Sovereign Immunity

"Dear Chairman Leahy and Ranking Member Tillis

On behalf of the United States Copyright Office, I am pleased to deliver a copy of a report entitled Copyright and State Sovereign Immunity, which is available to the public on the Office’s website.

Following the Supreme Court’s decision in Allen v. Cooper, you requested that the Copyright Office undertake a study to determine whether, consistent with the Court’s analysis, Congress could legislatively abrogate state sovereign immunity to suits in federal court for damages for copyright infringement.

In response to your request, the Office solicited the views of interested stakeholders and held round tables to amplify the record. The Office received comments from many copyright owners who believed that their works had been infringed by state entities. A number of state entities provided information about their policies on copyright, and views regarding allegations of infringement and the possible effect of abrogation on their operations. The Office also conducted extensive research into the legal standards governing abrogation in the context of copyright infringement. 2

After carefully evaluating the information provided, the Office can report that the number of allegations of state infringement provided in the course of this study is substantially greater than the number Congress considered when it adopted its prior abrogation legislation, and greater than the evidence found insufficient in prior intellectual property cases. Although few of the infringement allegations provided to the Office were adjudicated on the merits, the evidence indicates that state infringement represents a legitimate concern for copyright owners. Given the demands of the current legal standard, however, and some ambiguity in its application, we cannot conclude with certainty that even the current more robust record would be found sufficient to meet the constitutional test for abrogation.

The Office nevertheless continues to believe that infringement by state entities is an issue worthy of congressional action. n. While many such entities take care to respect copyright, and engage in activities likely to fall under copyright exceptions, others may use copyrighted works for a variety of market substituting purposes. There would seem to be little justification for immunizing these types of entities from damages if they intentionally engage in the same conduct for which a private party could be held liable. Therefore, if Congress decides not to proceed with abrogation legislation, the Office would support consideration of alternative approaches to address this issue.."
Copyright and state sovereign