24 March 2020CopyrightRory O'Neill

SCOTUS hands initiative to Congress on state immunity

Copyright lobbyists have urged US lawmakers to revisit the statute on state sovereign immunity in the wake of yesterday’s US Supreme Court ruling in Allen v Cooper.

The US’ highest court  ruled yesterday, March 23, as expected, that states and state-owned institutions could not be sued for copyright infringement.

Keith Kupferschmid, CEO of the non-profit  Copyright Alliance, said he was “not totally surprised” by the court’s ruling, but said the Supreme Court justices had “clearly understood the inequities associated with letting states infringe copyrights with impunity”.

According to Kupferschmid, the court “seemed to be encouraging Congress to step in and, using the test set forth in this decision, to craft a new statute that would be narrowly tailored to ‘effectively stop states from behaving as copyright pirates’.”

The Supreme Court was ruling on an  appeal brought by photographer and videographer Rick Allen, said the state of North Carolina had used his copyright-protected images of Blackbeard’s ship, Queen Anne’s Revenge, without permission.

Allen had  attracted the support of groups like the Copyright Alliance, who urged the Supreme Court to curb states’ powers to, as they see it, infringe creators’ copyright with impunity.

But the justices said that precedent in a previous case, Florida Prepaid v College Savings Bank, was that IP could not provide the basis for an exemption to state sovereign immunity.

Margaret Esquenet, partner at  Finnegan, Henderson, Farabow, Garrett & Dunner, agreed with the Copyright Alliance that the decision opened the door to legislative reform in favour of copyright owners.

“The court suggested that not all was lost, at least for future rightsholders. The decision provided a map for copyright owners to seek congressional action for a more narrowly tailored law targeting intentional and reckless infringement by state entities,” Esquenet said.

But according to John Lu, partner at  Milbank, Congress was unlikely to revisit the issue “unless there is an increase in allegations of IP infringement by states”.

Lower courts could, however, limit the scope of states’ immunity, Lu said:  “For example, states would be able to use immunity only as a defensive ‘shield’, and not as an offensive ‘sword’ by alleging copyright infringement and arguing that its copyright cannot be invalidated as non-copyrightable subject matter because of sovereign immunity.”

James Lovsin, partner at  McDonnell Boehnen Hulbert & Berghoff, said copyright owners in future would need to frame alleged infringement by states as “widespread, intentional, or at least reckless,” in line with yesterday’s ruling.

“In effect, the states would need to be pirates. At that point, the owners could lobby Congress to enact another abrogation statute,” Lovsin added.

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More on this story

23 March 2020   The US Supreme Court has declared that state institutions can’t be sued for copyright infringement, in a case stemming from the use of videos and images featuring the wreck of Blackbeard’s ship, Queen Anne’s Revenge.
6 November 2019   The US Supreme Court has been urged to give copyright owners the right to sue state institutions for unlicensed use of their work.