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Sovereign Immunity Boondoggle at the US Copyright Office

closeup photo of "We the People" part of US Constitution
image CC-BY-NC-ND 2.0 by Kim Davies

State sovereign immunity—the immunity of states from being sued in federal courts—is a doctrine with a long history and lots of recent controversies.  This form of immunity from lawsuit has its roots in the Tenth Amendment to the US Constitution, which reserves to the states all of the powers not specifically granted to the federal government, and is made explicit in the Eleventh Amendment.  Early in the 20th century, the Supreme Court carved out an exception to sovereign immunity that makes it possible for federal courts to impose injunctions on state governments that are violating federal law, but states remain immune from money damages.

Over the last 50 years, several different attempts have been made to abrogate, or repeal, sovereign immunity in certain areas of the law, which would allow lawsuits in federal courts over certain kinds of alleged wrongs.  In 1993, such an effort was made around issues of religious freedom and burdens placed by state law on free exercise of religion.  In ruling that this Religious Freedom Restoration Act could not be applied to state governments, the Supreme Court held that the only power under which Congress could abrogate state sovereign immunity was its power to enforce due process and equal protection of the law under the Fourteenth Amendment.  To do that, the court said, Congress must be able to show that it was acting to stop a widespread pattern of intentional violations of a federal law by the states.

…universities and university presses…are, in fact, some of the most responsible copyright users to be found. Where else, after all, is so much energy devoted to educating users about copyright, providing guidance on appropriate reuse of copyrighted materials, and explaining how to avoid infringement?

 

The Copyright Remedies Clarification Act of 1990 was a similar attempt to abrogate sovereign immunity and subject states to lawsuits over allegations of copyright infringement.  The act was partially based on a report to Congress from the Copyright Office that collected such allegations in order to support the kind of record needed to suspend the constitutional privilege that states have under sovereign immunity.

Last year, in its decision in Allen v. Cooper, the Supreme Court again upheld state sovereign immunity, and rejected the Copyright Office’s report as an insufficient record of a systemic problem to support abrogation.  Almost as soon as the court had issued its ruling, lobbyists for the content industry convinced two senators to ask for a new report.  Once more, the Copyright Office set out to collect a record of bad behavior that would be sufficient to support Congress in waiving state sovereign immunity in copyright cases.  To build that record, the Copyright Office issued a notice of inquiry, asking all and sundry to submit their grievances about how states handle copyrights owned by others.

Surprisingly, the Copyright Office received a paltry number of comments—only 31—and, as a whole, they are a pathetic record.  A significant number of those comments do not even reflect the most basic understanding of what was requested.  Comments that complain about Nigerian phishing schemes, rogue federal agents, or a state’s alleged infringement of an individual’s “copyright” in his name indicate that some took the opportunity to air their grievances, even when those grievances misunderstand the nature of copyright and/or have no relationship with sovereign immunity.

Grievance is, in fact, the only consistent theme running through the comments filed in support of the idea that states should be subject to copyright lawsuits in spite of the doctrine, rooted in the most basic structure of American government, of immunity for states.  Some of the comments do express grievances that are, at least, tied to copyright; some complain of actions by universities or university presses that are likely covered by fair use.  The fact that the authors of these comments do not like fair use, at least in a particular instance, is irrelevant, however, to the result the Copyright Office was seeking.

Taken together, these comments offer a woefully insubstantial record of the kinds of misbehavior the Copyright Office clearly was looking for.  A significant number (including comments from the Library Copyright Alliance) also point out that the alleged miscreants—universities and university presses—are, in fact, some of the most responsible copyright users to be found.  Where else, after all, is so much energy devoted to educating users about copyright, providing guidance on appropriate reuse of copyrighted materials, and explaining how to avoid infringement?  It is easy, based on these comments to understand why sovereign immunity for copyright infringement lawsuits is not a problem; many state actors are much more aware and responsible about copyright than the general public, and the current remedies available to copyright owners, such as injunctions or steps to enforce contractual agreements, are more than adequate.  What is much more difficult, in these comments, is to find an iota of evidence that state sovereign immunity for copyright damages, is a problem at all.

The Copyright Office is currently accepting “reply comments,” and I expect that quite a few parties will point out the extreme weakness of any record built on the evidence assembled thus far by the Copyright Office.  It is also likely that a few more miscellaneous grievances will be aired, often with no clear or direct connection to the issue at hand.  Under its new register of copyrights, Shira Perlmutter, the Copyright Office has a lot of important work to do, especially in modernizing the systems by which copyrights are registered, indexed, and searched.  Let’s hope that the office does not waste too much more time on the boondoggle that is abrogation of state sovereign immunity.

Kevin L. Smith is dean of libraries at The University of Kansas.

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