Last week, the Regulatory Transparency Project of the Federalist Society released a paper titled “Holding States Accountable for Copyright Piracy.” The paper was authored by Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen and noted that the U.S. Supreme Court has recognized that “copyright is the engine of free expression that supplies the economic incentive to create and disseminate ideas.” However, citing Allen v. Cooper, the paper explained that a recent Supreme Court decision has jeopardized the U.S. copyright system by “severely limiting” the ability of creators and copyright owners to hold states accountable for infringement by holding that states can escape accountability for intentional acts of infringement by invoking the doctrine of sovereign immunity. The paper further emphasized the injustice that Allen has brought forth, since current law allows states to claim the benefits of copyright protection for their own works and works transferred to them, while escaping liability when they infringe the copyrights of others. Solutions were proposed to level the playing field, including Congress enacting a law validly abrogating state sovereign immunity and waiving sovereign immunity for states acting as market participants.
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