Copyright and State Sovereign Immunity: A Report of the Register of Copyrights

Authors

Shira Perlmutter, U.S. Copyright Office

Date of this Version

8-2021

Document Type

Article

Comments

U.S. government work

Abstract

In March 2020, the Supreme Court held in Allen v. Cooper that Congress had exceeded its constitutional authority when it enacted legislation authorizing copyright infringement suits for damages against states.1 The Court based its decision on the legal doctrine of sovereign immunity, which generally precludes a federal court from hearing a suit against a state without the state’s consent. The Court noted that Congress has the power to abrogate state immunity, including to prevent or remedy deprivations of property without due process in violation of the Constitution. To do so, however, Congress generally must develop a legislative record demonstrating a pattern of unconstitutional conduct by states for which there are no adequate state remedies. Following the decision, Senators Thom Tillis and Patrick Leahy requested that the Copyright Office study the extent to which copyright owners are experiencing infringement by state entities without adequate remedies under state law. Over the past year, the Office has solicited public comments, held public roundtables, and conducted legal research on this issue. This report presents the Office’s findings and conclusions.

Part I of the report describes the history of this study, and Part II summarizes the relevant legal background. The text of the Eleventh Amendment prohibits federal suits against states by non-residents, and courts have interpreted the Amendment to also bar suits filed by residents of the state being sued. The Supreme Court nevertheless permits federal suits for damages against nonconsenting states where Congress has validly abrogated state immunity under the Fourteenth Amendment. In doing so, Congress must ensure that there is congruence and proportionality between the constitutional injury and the means adopted to prevent or remedy it. Abrogation provisions that fail to meet this standard have been struck down by the Court.