State Copyright Plunder is Bad and Getting Worse

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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." 

The Founders understood that, without effective enforcement of copyright, innovators are less likely to produce and publish work because the opportunity to be rewarded for their efforts becomes greatly diminished. State sovereign immunity threatens to upset our copyright system by stripping creators of the right to hold infringers accountable, and it’s time that Congress step in and pass legislation that prevents state entities from stealing and profiting off of the work of another with impunity. 

Author Michael Bynum experienced the chilling power of sovereign immunity when Texas A&M University's Athletic Department blatantly trampled on his rights as a copyright owner. Bynum spent years writing a book called "12th Man: The Life and Legend of Texas A&M's E. King Gill" and sent it to the school for fact-checking purposes. Everything seemed to be going well until, without his permission, an assistant athletic director published the full text of his book online — but only after removing any attribution to Bynum. The school then shared the stolen material with hundreds of thousands of boosters, effectively destroying any future market for Bynum’s book. After all, why would a Texas A&M fan buy a book that is available for free online? Bynum decided to sue the University for copyright infringement, but for the last seven years, the school's been hiding behind a sovereign immunity shield.

Congress tried to prevent egregious abuses of sovereign immunity by passing the Copyright Remedy Clarification Act (CRCA) of 1990, eliminating state sovereign immunity protections for copyright violations. Unfortunately, last year the Supreme Court invalidated the CRCA in Allen v. Cooper because the justices believed their hands were tied by past precedent. In that case, photographer Frederick Allen’s copyrighted videos of Queen Anne's Revenge, a sunken pirate ship, were used without his permission by state officials to promote tourism. 

Despite the Supreme Court’s finding, it did give some reason for hope. In her majority opinion, Justice Kagan wrote that the decision "need not prevent Congress from passing a valid copyright abrogation law in the future" and that a “tailored statute can effectively stop States from behaving as copyright pirates.” The Court’s clear language gave Congress a framework to limit state sovereign immunity without running afoul of the Constitution.

The need for change is only growing more urgent because instances of infringement by state entities is on the rise. For example, Bynum found over 150 copyright infringement cases filed against state entities between 2000 and 2017, and the software industry recently identified 77 different violations by state officials. Another study by the Copyright Alliance, showed that the number of violations has increased significantly in the last decade.

Behavior by University of Houston officials illustrates what happens when state officials are allowed to violate copyright law without meaningful consequence. In 2005, photographer Jim Olive took a series of spectacular photos of the Houston skyline while suspended from a helicopter. University administrators posted one on their website without any attribution and then allowed it to be used by major news outlets, including Forbes magazine. When Olive realized what the school had done, he demanded officials remove the photo, which they did, but when he demanded fair compensation, he was offered a laughably small sum. 

Olive took the school to court, but his efforts to hold the University accountable have been stymied by sovereign immunity. While proponents of sovereign immunity claim that other state remedies exist outside of copyright law that can help creators like Olive, a recent development in his case exposes the futility of these alternative claims. On June 18, the Supreme Court of Texas rejected Olive’s argument that the University’s infringement resulted in an unconstitutional taking of his property — leaving him with no recourse against state theft.

The Bynum and Olive cases are only two of the many instances where copyright owners are left with no meaningful way to hold states accountable for infringement. It’s time Congress acted to ensure sovereign immunity is limited and America's innovators are protected.

Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the Copyright Alliance.

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