On November 5, the U.S. Supreme Court heard oral arguments in the copyright case of Allen v. Cooper. At issue in the case is whether state are sovereignly immune from copyright infringement claims or whether states' immunity was abrogated by the Copyright Remedy Clarification Act of 1990 (CRCA). According to a recap of the oral arguments posted at SCOTUSblog, some of the Justices pushed back against the idea that states could become copyright owners and yet also infringe others' copyrights with impunity. Among the observations reportedly made by the Justices during oral arguments was the idea that state infringements of copyrights is contrary to the Constitution's purpose in empowering Congress to secure exclusive rights in creative works to authors. Those are sound observations, and hopefully the Justices will follow through with a just decision that recognizes the legal rights of copyright owners against infringements by states, state institutions, and state officials. The Supreme Court will reach a decision in Allen by the end of the current term in June 2020.
Allen v. Cooper is the subject of my Perspectives from FSF Scholars paper published on October 16, "States Have No Right to Infringe Copyrights." That paper provides an overview of the case and takes a closer look at the nature of copyrights through the lens of the 14th Amendment's Privileges or Immunities Clause. Additionally, the Federalist Society produced an insightful podcast discussing Allen and the underlying issues involved. Also, Law Professor Adam Mossoff published an excellent op-ed on the case in the Wall Street Journal that is available online.
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