State Sovereign Immunity Study
At the request of Congress, the Copyright Office is undertaking a public study to determine the extent to which copyright owners are experiencing infringement by states without adequate remedies under state law.
On March 23, 2020, the Supreme Court held that the provisions of the Copyright Act subjecting states to liability for infringement did not validly abrogate states’ sovereign immunity from suit. As a result, copyright owners suffering infringement by state entities cannot seek the remedies provided by the Copyright Act. The Court’s decision was based in part on the lack of evidence in the legislative record that states had intentionally infringed copyrights and had not provided adequate remedies for affected copyright owners under state law.
Congress is considering whether there is sufficient evidence of infringement by states to support legislation under the standard established by the Court. To assist Congress in making that assessment, this study seeks to determine the degree to which copyright owners face infringement from state actors today, whether such infringement is based on intentional or reckless conduct, and what remedies, if any, are available to copyright owners under state law.
On June 3, 2020, the Office issued a Federal Register notice seeking public input on several topics relating to these issues. Initial comments were due on September 2, 2020. The Office is now accepting written reply comments and empirical research studies, which must be received no later than 11:59 p.m. eastern time on October 22, 2020. The Office expects to schedule roundtables in this proceeding at a later date.