And it’s a shame that justice will not be the basis on which it is corrected. If it ever is.
Recently, the U.S. Copyright Office published its report on copyright infringement by states and state actors in response to the present circumstance whereby states are immunized against litigation for unlicensed use of protected works. As the Supreme Court held in the late 1990s, and affirmed in Allen v. Cooper (2020), Congress lacked the authority, under its Article I powers, when it explicitly abrogated Eleventh Amendment state sovereign immunity in federal suits against states for infringements of intellectual property.
I have written extensively on the background of sovereign immunity, and this post will provide a detailed account of where things stand and how they got that way. But the big bullet point of the moment is that the USCO was asked by Congress to report on the scope and nature of state infringements to discover whether a foundation exists for yet another run at legislative abrogation of state immunity for IP enforcement. The report was requested after the Supreme Court in Allen, even while acknowledging the injustice of the outcome, indicated that any new laws that set aside immunity would have to be based on evidence of widespread “intentional and reckless” infringement by state actors.
Intentional and reckless are evidentiary standards for which stakeholders representing state entities (e.g. university libraries) advocate a high bar that the alleged infringer must be proven to have knowingly made unauthorized use of a work. Conversely, entities like the National Press Photographers of America (NPPA) advocate the lower bar that the alleged infringer must act upon “something more than negligence.” Personally, I tend to think that unless one is somehow unaware that copyright law exists in the U.S., the default assumption should be that using a work without obtaining permission is most likely an infringement.
Too Much Focus on Volume and Frequency
Meanwhile, it seems that a significant injustice in this whole mess is the idea that Congress should be required to gather evidence of a large volume of state infringement presently occurring in order to meet what is called the “congruent and proportional” standard for abrogating Eleventh Amendment immunity in order to protect creators. The principle of the standard is sound enough. For a law to encroach upon a constitutional right, it must remedy a constitutional harm in a manner that is proportional to the injury being done to the first right. And in Allen, the Court held that when Congress abrogated immunity in 1990 for copyright infringement (with the CRCA), it failed to do so based on sufficient evidence of state infringements necessary to meet the “congruent and proportional” standard.
Consequently, it seems reasonable to worry that injustice may be perpetuated as a result of too much emphasis on the volume and frequency of measurable infringements because that is not how laws protecting individual rights are supposed to work. On the contrary, many laws of this nature are often meant to address minority interests in which individual rights may be infrequently yet substantially infringed—as is the case with laws mandating access to public facilities for persons with disabilities. And in addition to the fact that a single copyright infringement by a state actor can do significant economic harm to an independent creator or small business (even causing self-inflicted harm to the state itself), the emphasis on quantity and frequency of infringements nationwide elides a principle beyond economics that has been woefully diminished in the whole state immunity narrative.
It is potentially regressive in many areas of national policy that the Supreme Court determined that Congress’s Article I powers do not extend to abrogating state immunity, even for the purpose of writing explicit and narrowly-tailored federal laws. And I would argue that state copyright infringement is a challenge that emphasized the nature of this dysfunction. Because of all the authorities granted to Congress in Article I, only the IP clause empowers it to pass laws with the express purpose of protecting a unique set of rights secured to individual citizens. And copyright is further distinguishable from its twin, patent law, because most of the works copyright protects are creative, personal expressions that are unavoidably intertwined with the authors’ speech rights.
So, when a state or state actor infringes copyrights, the implications are, of course, financial, but quite often much more than financial. They are acutely felt, unconstitutional violations of individual liberty. So, while I certainly hope that, for instance, Rick Allen prevails in his copyright takings claim in North Carolina, it is at the same time unfortunate that the sovereign immunity narrative is limited to treating copyright as strictly analogous to ordinary property because this view overlooks a fundamental injustice—one that is not ignored in the private sector.
Compelled Speech is an Inevitable Byproduct of Sovereign Immunity
To illustrate the point, imagine the following hypothetical that I wish we could call farfetched: Imagine a TV commercial or promo video produced by a state-funded entity that uses music without license, written and performed by feminist icon Beyoncé, to endorse Texas’s draconian anti-abortion law. Not only would the state actor have committed prima facie copyright infringement, but any reasonable observer would consider this use of the artist’s music to be an even greater crime of compelled speech. When creative works like music are used via compulsory license at political rallies, compelled speech may occur in those instances; but in a case in which a state-funded entity or state-employed individual uses a work to convey a specific message to which the creator(s) may be profoundly opposed, the speech infringement argument is even stronger.
As I say, I wish this was an unrealistic hypothetical, but the current state of our politics indicates that it is not. And I concocted the Beyoncé scenario to draw attention to the kind of personal, and not merely financial, injury that nearly any creator experiences when her work is misused. One could easily reverse the narrative and imagine a Christian rock band’s music appropriated to endorse abortion rights, and the principles would be the same.
But, of course, most creators are not Beyoncé. They are small, independent authors of works, and the more likely scenario is one in which, perhaps a photograph is used to endorse a message with which the photographer disagrees. Unless the photographer and photograph are quite well known, the compelled speech argument would be more difficult to make, though it would still be felt by the creator of the work. In fact, in the NPPA’s written comments of September 2 to the Copyright Office, the organization stated the following:
Simply put, with state sovereign immunity for copyright infringement, states are free to present and promote their messages by using copyrighted works against the wishes of the journalists and artists who created them. A state that opposes same-sex marriage, for example, could use the images taken by a wedding photographer to promote its position on “family values.” Each infringing use of imagery, if committed by a state actor, would amount to unconstitutional forced speech.
But in any similar circumstance other than a state infringement, the author is able to enforce her copyright rights to prevent a use of which she does not approve, whether for creative, cultural, financial, or political reasons. It is, in fact, not necessary for an owner of a work to provide a reason to take enforcement action against a clear case of infringement or to deny permission to use a work in a certain way.
As was widely discussed seven years ago, the Beastie Boys sued toy company GoldieBlox for using one of their songs for the simple reason that the band does not want its music used for advertisements of any kind. And no further explanation is required. So, if a commercial entity can be prevented from using a protected work to engage in speech the author chooses to shun for any reason, it should be imperative that a state actor must be equally restricted from engaging in compelled speech, as this is an unequivocal violation of the First Amendment.
So, with regard to the congruent and proportional standard, copyright infringement should not be viewed solely in terms of financial harm or through the limiting metrics of volume and frequency. It should instead be understood that copyright is unique by conferring property-like ownership in the products of individual expression, which are simultaneously protected by another (and many feel the most sacred) constitutional right. Hence, any perceived injury to the Eleventh Amendment (historical debate on its meaning notwithstanding) should be substantially overwhelmed by the amount of constitutional heft embodied in the principles of copyright.
 The USCO report cites Tennessee v. Lane and the abrogation of immunity to enforce the Americans with Disabilities Act.
 At least it did not at the time. I have not checked to see if the Beasties have since changed their policy.