Copyright Office Releases Study on State Infringements and Sovereign Immunity

On August 31, the U.S. Copyright Office released its policy study on "Copyright and State Sovereign Immunity." The study was requested following the U.S. Supreme Court's 2020 decision in Allen v. Cooper, which held that the Eleventh Amendment barred liability for copyright infringements by states under the Copyright Remedy Clarification Act of 1990 (CRCA). My July 2020 Perspectives From FSF Scholars titled "Congress Should Stop States From Infringing Copyrights" was written in response to Allen v. Cooper.

The Copyright Office's study summarizes the record of copyright infringement actions brought against states since the CRCA, provides an account of other alleged copyright infringements by state agencies as well as state officials, and it explores other possible legal bases for addressing copyright infringements by states in light of the limitations imposed by Allen v. Cooper.

My August 20 blog post noted one post-Allen case decided by a U.S. District Court that appears to leave the door open to takings claims regarding alleged copyright infringement by a state. Expect to hear more from Free State Foundation Scholars in the near future on the Copyright Office's copyright and state sovereign immunity study as well as more on post-Allen court decisions involving alleged infringements by states.