Download This PaperAllen v. Cooper: States Stay Copyright Pirates
6 Pages Posted: 30 Apr 2020 Last revised: 9 Sep 2021
Date Written: 2020
Abstract
“Who are today’s pirates?” States have enjoyed sovereign immunity while plundering the seas of patents and trademarks since 1999, when the Supreme Court decided Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board. And on March 23, 2020, the Court held unanimously in Allen v. Cooper—the first of three copyright cases this Term—that the same immunity protects states from copyright infringement suits.
After Allen, state employees, such as teachers who often post and co-opt teaching materials online, continue to benefit from their employers’ sovereign immunity—in addition to the oft-cited fair use defense—from copyright infringement suits. This protection will become increasingly meaningful as society, including many educational institutions, moves towards digital platforms, where copying is just a button’s click away. However, Justices Breyer and Alito have warned that “piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible,” which not only “ignore[s] the critical role copyright plays in the creation of new works,” but also instills “a false belief that new creation appears by magic without thought or hope of compensation.”
Keywords: Allen v. Cooper, Eleventh Amendment, constitutional law, copyright, intellectual property, pirates, states, sovereign immunity, patent, trademark, U.S. Supreme Court, SCOTUS
JEL Classification: K00, K10, K19, K20, K29, K30, K39, K40, K41, K49
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