Modify State "Piracy" after Allen: Introducing Apology to the U.S. Copyright Regime

Abstract

Copyright protection from state offenders is onerous because of the imbalanced bargaining power between states and authors, which is increased by the U.S. Supreme Court decision in Allen v. Cooper. This decision clarifies that state sovereign immunity is not abrogated by the Copyright Remedy Clarification Act of 1990 (“CRCA”). It secures states’ constitutional rights, the public interest, and the efficiency of copyright infringement litigations against states. However, a paradox of this decision is that it may harm innovation incentives or spirits of creativity due to the increased imbalanced bargaining power to prevent authors from being repaired for their economic or non-economic losses. This Article reviews the law and psychology literature and proposes to adopt compelled and voluntary state apologies in the copyright regime. It suggests that the apologies do not conflict with Allen’s benefits but can rebuild the reputation of authors and repair relationships between the authority and authors to promote or sustain their innovation incentives.

Keywords: apology, copyrights, state sovereign immunity, innovation

JEL Classification: O3, K4