The ultimate remedy for copyright infringement is to sue infringers in federal court. But if the infringer is the government, you may be out of luck because the government (a/k/a the “sovereign), may not be sued unless it has specifically agreed to be sued. This legal concept is called “Sovereign Immunity.”

Fortunately, the federal government has specifically waived its immunity from copyright infringement lawsuits. 28 USC 1498(b) provides, in part:

[W]henever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims [not a district court] for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code . . . .

Whether state governments have immunity from copyright infringement suits is not so clear. The Copyright Remedy Clarification Act (“CRCA”), at 17 U.S.C. 511(a) states that:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

However, most courts have held that Congress did not have authority to waive a state’s immunity because the statute violates the Eleventh Amendment of the U.S. Constitution:

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.

and Congress did not have the authority to exercise the power to waive that immunity under section 5 of the Fourteenth Amendment.

For example, the court prevented Richard Bell from recovering on his infringement claim against the University of Indiana because of state sovereign immunity. See more at https://www.photoattorney.com/court-confirms-sovereign-immunity-state-government-employees/.

Now, the U.S. Copyright Office has announced that it will study the extent to which copyright owners are experiencing infringement by states without adequate remedies under state law. The Senate Judiciary Committee’s Subcommittee on Intellectual Property requested the study following a Supreme Court decision earlier this year holding that states are immune from liability for copyright infringement. To assist the Office in preparing a report for Congress as it considers possible legislation in this area, the notice requests written comments from the public on a number of questions.

The requested information is listed in the Federal Register notice. For additional information, including instructions for submitting comments, please visit the Office website. Comments must be received no later than 11:59 p.m. eastern time on August 3, 2020.

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