The Eleventh Amendment to the U.S. Constitution was passed in 1794, providing states with “sovereign immunity” from lawsuits:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI
The scope of that right has been debated in the courts and Congress ever since.
In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which was intended to deny sovereign immunity for claims of damages for copyright infringement.
Thirty years later, in December 2020, the Supreme Court held the CRCA to be unconstitutional. However, the Court said that denying sovereign immunity might be constitutional in cases where a “robust record” indicates that the state’s infringing acts are “intentional” or “reckless.” (Allen v. Cooper)
Congress then instructed the Copyright Office to determine how extensively copyright owners experience infringement by states without the ability to obtain appropriate damages. Its report was recently released.
The report shows states that many copyright infringement lawsuits have been filed against states since 2000, including 132 alleging willful (intentional) infringement. It concludes that:
the evidence indicates that state infringement represents a legitimate concern for copyright owners. … [H]owever, … we cannot conclude with certainty that even the current more robust record would be found sufficient to meet the constitutional test for abrogation.
The Office then suggested a “waiver-based framework for infringement suits against states,” under which “a state’s ability to recover damages for infringement of its own intellectual property rights would be conditioned on its waiving sovereign immunity from infringement suits.”