Allen v. Cooper Revisited III: Data Suggests States Willfully Infringe Copyrights

In my first two Revisited posts summarizing the legislative and judicial history leading up to the Supreme Court decision in Allen v. Cooper, I dove into some fairly deep waters. But now, let’s return to the practical matter at hand for contemporary authors of creative works. In short, if a state entity infringes your copyrights, you’re basically hosed. Meanwhile, unjust though it is, state entities, as major copyright owners, may avail themselves of the law when enforcing their copyrights against infringement.

To be precise, if a state actor infringes your copyrights, you cannot not sue for money damages. At best, you may be able to obtain an injunction against the state entity and force it to discontinue the infringing conduct; but without the prospect of money changing hands, initiating a federal lawsuit is prohibitive for most authors. To summarize the Supreme Court in Allen v. Cooper, it upheld its own precedent rulings (1900s-2000) that Congress may not abrogate 11th Amendment immunity (a.k.a.) state sovereign immunity, even under its Article I power to protect intellectual property.

But, as mentioned, the Court’s opinions in Allen also provided Congress with a roadmap, albeit a limited one, whereby new remedial legislation could potentially abrogate state immunity for infringements of intellectual property. Any new legislation must be based solely on the 14th Amendment’s prohibition against the taking of property without due process, and it must be backed by solid data showing that “willful and reckless” infringement by states is a substantial enough problem for creators that the constitutional abrogation can withstand the precedent decisions in these matters. When a case is ultimately tried of course.

State Actors Seem to Know They’re Immune

In response to the Court’s legislative “roadmap” in Allen, Senators Tillis and Leahy sent letters to the Copyright Office and the Patent and Trademark Office requesting comment and evidence related to the scope of state IP infringement. In response, the USCO issued a notice of inquiry seeking input from creators and copyright owners about their experiences with state infringers. In support of this effort, the Copyright Alliance created a public survey, which included the USCO criteria. Preliminary data from the CA survey bolsters the assumption that state infringement is increasing and may be increasing because state actors are aware of their immunity from litigation.

Over a six-week period, 655 Copyright Alliance members responded, with 115 reporting that their works were infringed by state entities. Specifically, Congress should take note of those rightsholders who report that they were initially contacted by state actors for licenses, and when the rightsholders declined, the state actors proceeded to use the work(s) anyway. “… respondents who viewed the infringement as intentional…[described] situations in which an attorney’s warnings were ignored, copyright management information (CMI) on the works was ignored or removed, or use of the works continued when an entity was aware that a license had expired,” the Copyright Alliance report states.  

Further, not only do these data imply a substantial amount of willful infringement, but 44% of respondents report that when they demanded that the state actors cease the infringing conduct, the infringers specifically invoked sovereign immunity as a reason for non-compliance. More than half the infringing entities, according to the creators who offered descriptions, were state universities, while the rest were organizations like tourism boards, state departments, and museums.

Assuming that these data indicate that many state infringers are acting upon an increased awareness of their immune status, this points to a reasonable conclusion that a substantial proportion of state infringements meet the standard of “reckless and willful,” as the Supreme Court opined in Allen would be necessary for Congress abrogate immunity. Meanwhile, nearly 70% of respondents to the CA survey report that they believe they lost revenue or licensing opportunities because of state infringement.

Oddly enough, it is possible that high-profile litigation like Allen v. Cooper, which principally affirmed a 2000 decision (Chavez v. Arte Publico Press) on the state immunity question for copyright infringement, may have the effect of emboldening state actors to engage in more brazen acts of reckless and willful infringement. At the same time, the Court was unequivocal in its unanimous view that state immunity in this regard is simply wrong; and absent Rick Allen’s lawsuit, authors would not have the SCOTUS opinions in their arsenal.

In the meantime, Rick Allen, on September 4, filed a motion to reconsider one count of his complaint against the state of North Carolina. The motion states, “These allegations (and still further allegations of intentional infringement, inadequate remedies, and absence of process that Allen will add if permitted to do so) would support a finding that North Carolina’s conduct violated not only the Copyright Act but the Fifth and Fourteenth Amendments as well.” More on that in the next post addressing state IP infringement.

© 2020, David Newhoff. All rights reserved.

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