Contours of Copyright: Supplementary Note to “The States Win One and Lose One.”

HGZ Headshot Photo 2015 (M0846618xB1386)Earlier this month we reported on two Supreme Court cases affecting states’ rights under copyright law. The victory for states came in Allen v. Cooper, which held that the Copyright Remedy Clarification Act of 1990 lacked a proper constitutional foundation to abrogate states’ immunity, under the 11th Amendment, from private copyright infringement suits. The Court did note that Congress had the power to authorize citizen suits; however, this could not be for mere infringement, but must be a proportional response to a constitutional harm, such as “intentional, or at least reckless” infringement, or a pattern of abusive infringement, for which there is no “adequate remedy.”

Apparently, the Senate Judiciary Committee’s Subcommittee on Intellectual Property takes this possibility seriously. On June 3, 2020, the US Copyright Office published a notice in the federal register to announce a “Sovereign Immunity Study” to determine “the extent to which copyright owners are experiencing infringement by states without adequate remedies under state law.”

If you believe you have something to contribute to this inquiry, or are just interested in learning more, go here. Note that responses are due by August 3, 2020.