States Can Infringe upon Your Intellectual Property Rights with Impunity in the Era of 'New Federalism'

50 AIPLA Quarterly Journal 161 (2022)

45 Pages Posted: 5 Aug 2022

See all articles by Homayoon Rafatijo

Homayoon Rafatijo

Spencer Fane Britt and Browne LLP

Dennis David Crouch

University of Missouri School of Law

Date Written: February 1, 2022

Abstract

The FBI Anti-Piracy Warning provides that “unauthorized reproduction or distribution of a copyrighted work is illegal.” In Allen v. Cooper, the Supreme Court effectively qualified this warning by adding an exception in favor of “sovereign” pirates. In allowing the states to usurp citizens’ intellectual property rights, the justices of the Allen Court prioritized either a dogmatic form of stare decisis or the New Federalist ideology over the Constitution and its structure and history. The Allen Court largely based its decision upon a perceived historic kinship between patents and copyrights, concluding that if not patent, then not copyright. This article walks through the historical record, especially in the period following the Federal Convention, and reports key differences between the patent and copyright systems that that tilt toward a conclusion that the States agreed “to be subordinate to the government of the United States” in the copyright space. In the end, Allen creates serious practical problems for copyright holders. The decision emboldens copyright infringement by state actors by cutting-off the possibility of any recovery of damages for the infringement.

Keywords: Copyright, Sovereign Immunity, Federalism, Stare Decisis

Suggested Citation

Rafatijo, Homayoon and Crouch, Dennis D., States Can Infringe upon Your Intellectual Property Rights with Impunity in the Era of 'New Federalism' (February 1, 2022). 50 AIPLA Quarterly Journal 161 (2022), Available at SSRN: https://ssrn.com/abstract=4163206

Homayoon Rafatijo

Spencer Fane Britt and Browne LLP ( email )

Dennis D. Crouch (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

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