On Monday, March 23, the U.S. Supreme Court held that states are immune from copyright liability. This is troubling because it means that state universities and libraries can abuse copyright as much as they want without liability to publishers or authors. The Court’s decision in Allen v. Cooper invalidated a 1990 amendment to the Copyright Act which had allowed copyright holders to sue states for copyright infringement.

In Allen v. Cooper, plaintiff Allen and his production company were photographers with exclusive rights to document the exploration of the pirate Blackbeard’s shipwrecked vessel, but the state of North Carolina used Allen’s photographs and videos without his consent. Although the parties entered into a settlement agreement requiring the state to compensate Allen, Allen found out that the state had continued to use the copyrighted works after the date of the settlement agreement. The Supreme Court dubbed the alleged copyright infringement “a modern form of piracy.”

The Supreme Court’s analysis in Allen focused on its prior decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which held that the Patent Remedy Act (a law that stripped the states of immunity with respect to patent litigation) improperly abrogated state sovereign immunity against patent infringement lawsuits. Following its reasoning in Florida Prepaid, the Court stated that the copyright equivalent of the Patent Remedy Act was improper “for the same reason.”

While it found that states are immune (again) from copyright infringement actions, the Supreme Court nevertheless left a legislative door open: “That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.” The Court recognized the need to protect the interests of copyright holders—even from the states—saying “That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Protecting copyright holders from infringement by states and state-owned or sponsored entities is very important to the Authors Guild and many of our members; that’s why we signed on to the Copyright Alliance’s amicus curiae (“friend of the court”) brief to the Supreme Court in the Allen case, arguing in favor of limiting state immunity. We understand that work is already underway to create legislation that will address the concerns raised in the Court’s recent decision. The Authors Guild will continue to work with Congress to develop such legislation—as well as an adequate legislative record—to protect the rights of copyright holders from state infringers.