Sovereign Immunity for Copyright Infringement

Pictographs by the Fremont People, Jones Hole Creek, Utah

Pictographs by the Fremont People, Jones Hole Creek, Utah

An author is petitioning the Supreme Court for the second time, arguing that Texas A&M should be liable for copyright infringement after copying an important page from his book.

The case raises questions that the Court has touched upon before:

  • Are the Aggies protected by sovereign immunity?
  • Are the states fee to commit copyright infringement without penalty?
  • Did Texas make an unauthorized taking of the copyrighted work?
  • Is copyright infringement never a taking?
  • Is there any other type of liability here?

In 2020, the court decided Allen v. Cooper, holding that sovereign immunity protected states from copyright infringement claims. This case affected the author’s first petition to the Court.  Now he is trying again, challenging sovereign immunity for copyright infringement and its relationship to the Constitution.

Sovereign immunity is the sometimes qualified protection given to states to infringe on the rights of others. Policy decisions underpin much of sovereign immunity.  But should it allow a state entity – like Texas A&M University – to copy someone else’s hard work and creative expression?  Should Texas A&M be subject to copyright infringement despite the policy?

More available here at Patently-O.