Friday, May 14, 2021

New Paper by Copyright Law Experts Takes on Copyright Infringements by States

On May 13, the Regulatory Transparency Project published a paper titled "Holding States Accountable for Copyright Piracy." The paper was co-authored by a distinguished group of copyright experts: Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen. Professor Mossoff is a member of the Free State Foundation's Board of Academic Advisors. This paragraph from the introduction sets forth the paper's purpose: 

This paper identifies how copyright law and sovereign immunity came into conflict recently, explains why this conflict matters, and proposes a solution: Congress should enact new legislation that holds states accountable for when state officials pirate the fruits of creative labors of citizens by stealing their copyrighted works. 

The conflict alluded to is the result of the Supreme Court's decision in Allen v. Cooper (2020). Along with a discussion of legal principles and copyright case law, the paper profiles some specific cases in which states or state entities infringed on copyrights and inflicted serious harms on copyright owners but escaped legal liability under copyright law. 

For another discussion of Allen v. Cooper and the need for a legislative response to shore up protections for copyright owners, see my July 2020 Perspectives from FSF Scholars paper, "Congress Should Stop States From Infringing Copyrights." States should not be financially responsible for copyright infringement just like everyone else, and Congress should seek ways to ensure that justice is served when states infringe copyrights.

The U.S. Copyright Office is currently undertaking a study of the copyright infringements and state sovereign immunity. The Office's study is expected to produce a report for public release later this year.