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9/8/2021 -- The Fifth Circuit recently affirmed dismissal of a copyright infringement lawsuit by Michael J. Bynum against Texas A&M University and its employees on state sovereign immunity grounds. See Bynum et al. v. Texas A&M et al, 20-20503 (5th Cir. Feb. 14, 2022). This ruling was not a surprise, in light of the Supreme Court's 2020 decision overturning the Copyright Act's abrogation of state sovereign immunity. See Allen v. Cooper, 140 S.Ct. 884 (2020).
In Allen v. Cooper, the Supreme Court held that though Congress explicitly acted to abrogate state immunity from copyright infringement actions under 17 U.S.C. Sec. 511(a), it lacked authority to do so under its Article I Commerce Power. 140 S. Ct. 884 (2020). The Court noted that Congress might have the authority to abrogate State sovereign immunity, if evidence showed a pattern of unconstitutional infringement. The record before Congress when it enacted the Copyright Remedy Clarification Act (CRCA) in 1990 was deemed insufficient, as it only documented a handful of examples. "Of the 12 infringements listed in the 1990 report, only two appear intentional, as they must be to raise a constitutional issue." Id. at 1006. Following the Supreme Court's decision, Senators Thom Tillis and Patrick Leahy, leaders of the Senate Subcommittee on Intellectual Property, requested that the Copyright Office investigate the matter. On August 31, 2021, the Register of Copyrights and Director of the Copyright Office delivered a report showing that there was a substantially greater number of incidents than had been in the earlier record, that copyright infringement by states was "a legitimate concern for copyright owners," an that such infringement "is an issue worthy of congressional action." However, the report went on to observe noted that it may be difficult to prove state infringement represents a pattern of constitutional violations, so as to implicate the 14th Amendment. At this time, it seems plausible that statutory changes concerning the abrogation of state soverign immunity will be incremental, and will take some time to unfold.
In Allen v. Cooper, the Supreme Court held that though Congress explicitly acted to abrogate state immunity from copyright infringement actions under 17 U.S.C. Sec. 511(a), it lacked authority to do so under its Article I Commerce Power. 140 S. Ct. 884 (2020). The Court noted that Congress might have the authority to abrogate State sovereign immunity, if evidence showed a pattern of unconstitutional infringement. The record before Congress when it enacted the Copyright Remedy Clarification Act (CRCA) in 1990 was deemed insufficient, as it only documented a handful of examples. "Of the 12 infringements listed in the 1990 report, only two appear intentional, as they must be to raise a constitutional issue." Id. at 1006. Following the Supreme Court's decision, Senators Thom Tillis and Patrick Leahy, leaders of the Senate Subcommittee on Intellectual Property, requested that the Copyright Office investigate the matter. On August 31, 2021, the Register of Copyrights and Director of the Copyright Office delivered a report showing that there was a substantially greater number of incidents than had been in the earlier record, that copyright infringement by states was "a legitimate concern for copyright owners," an that such infringement "is an issue worthy of congressional action." However, the report went on to observe noted that it may be difficult to prove state infringement represents a pattern of constitutional violations, so as to implicate the 14th Amendment. At this time, it seems plausible that statutory changes concerning the abrogation of state soverign immunity will be incremental, and will take some time to unfold.