Picture it: videos of a sunken pirate ship, books on legendary sports figures, and photos taken suspended from a helicopter — all the targets of an audacious heist. But that’s no action movie plot. In recent years, state governments have run roughshod over copyright protections to simply take these items. And they’re getting away with state-sponsored larceny, abetted by an obscure legal doctrine called sovereign immunity.
Sovereign immunity was established by the 11th Amendment to ensure state governments didn't face a constant barrage of lawsuits by citizens of another state or foreign states. But over the two hundred plus years since it’s ratification, the amendment has been broadly interpreted to include immunity from a wide range of suits brought by a states’ own residents. This immunity has now been extended to copyright claims, undermining the original intent of the Founding Fathers who wanted strong copyright protections. James Madison wrote about the need for uniform copyright and patent laws in Federalist 43, arguing that "States cannot separately make effectual provisions for either of the cases."
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