From The Authors Guild:
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.”
. . . .
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.”
Link to the rest at The Authors Guild
The law that was found to be unconstitutional stripped states’ Soverign Immunity for patents under pretext of applying the 14th Amendment (equal rights) which is in fact lazy thinking since states that could be sued for patent infringement had *willingly* waived the privilege (thus the imbalance congress sought to fix) but they still retained tbe right to rescind the waiver. Other states chose not to waive the right so Congress couldn’t strip it without proper cause since there was no actual imbalance in states rights, just tgeir application. The law affected states’ invocation of their rights, not the rights of individuals which is what the 14th Amendment is about.
Subtle difference. Too suble for the average politician, apparently.
The Contitution establishes a hierarchy of rights after all and the proper mechanisms to apply them. Applying a personal rights law to states rights isn’t proper. Congress routinely tramples over states rights but this was going too far for SCOTUS. Good on them.
The proper clause to invoke would most likely be the the Fourth Amendment protecting against unreasonable search and *seizure* since patent rights (and copyrights) are personal property and it exists to limit and regulate government exercise of its rights and powers over individuals and their property. The US is particularly protective of individuals property rights. More so than most other countries, where property rights aren’t protected at the highest level.
Hopefully the bill the Guild is lobbying for, the purpose of the OP, will be better written and based on a proper foundation.