Background

Congress has the power to promote the progress and science of useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.  Article I, Section 8, United States Constitution (Article I).  The Copyright Act of 1976, as amended by the Copyright Remedy Clarification Act of 1990 (CRCA), was created by Congress under the authority derived from Article I.  Parts of the CRCA eliminated individual states' sovereign immunity with respect to copyright lawsuits, which allowed private copyright holders to sue individual states for infringement just like any other private defendant until this year.

What Changed?

The United States Supreme Court unanimously decided in March of this year that private copyright holders can no longer sue individual states for copyright infringement using the cause of action created by the CRCA.  Frederick L. Allen v. Roy A. Cooper, III, Governor of North Carolina, 589 US (2020).  However, the Supreme Court did hold that the 14th Amendment to the United States Constitution will allow Congress to abrogate states' sovereign immunity through a future act, so long as the legislative remedy adopted is congruent and proportional to well-documented copyright infringements constituting violations of due process by the states.  In order for this to happen, Congress has to make specific legislative findings that states have been engaged in widespread and intentional copyright infringement.  The Allen court ruled the CRCA unconstitutional because Congress failed to show evidence of widespread and intentional infringement in the legislative record which would have made the abrogation congruent and proportional to such an expansive act.

What Happens Next?

The Supreme Court cleared a path for Congress to create an act that will abrogate states' sovereign immunity, and there is evidence that Congress is already in the process of trying again.  This time around, Congress is looking into creating an act that is significantly more evidence-based so that they can draft a version of the CRCA that is consistent with the Supreme Court's holding.  The United States Copyright Office is currently undergoing a State Sovereign Immunity Study to determine the extent to which copyright owners are experiencing infringement by states without adequate remedies under the law.  The Copyright Office issued a Federal Register notice on June 3, 2020 seeking public input, and hosted a public roundtable on December 11, 2020 as part of this process.  Time will tell whether Congress will be able to reinstate some form of the protections previously offered under the CRCA using the guidance provided in the Allen case. 

Until Then..

In the meantime, individuals and businesses that share copyrighted materials with state governments should be aware that they will have no remedy against infringement by state actors and seek other ways – such as by contract – to protect themselves from harm.