In a pair of letters on Tuesday, Sens. Thom Tillis (R-North Carolina) and Patrick Leahy (D-Vermont) asked the U.S. Copyright Office and the U.S. Patent and Trademark Office to begin a study on the extent to which intellectual property owners are suffering infringement at the hands of state government. The request by the two members of the Senate Judiciary Committee comes after a notable Supreme Court opinion in March. The study would prime new legislation on the IP front.

In Allen v. Cooper, the high court held that North Carolina was immune from a filmmaker’s copyright suit. Rick Allen’s Nautilus Productions had pursued the state for posting his footage of the salvaging of an 18th century pirate ship online, but in a unanimous decision, the justices ruled that Congress hadn’t properly abrogated states’ immunity under the 11th Amendment to the U.S. Constitution. Although Congress had tried to do just that in the early 1990s, Congress’ invocation of authority couldn’t be justified.

However, near the end of her opinion, Associate Justice Elena Kagan basically invited Congress to try again.

“Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries — and of creating a legislative record to back up that connection,” she wrote. “But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. 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.”

Alas, the senators are taking the tip.

The letter states that Allen v. Cooper is a “blueprint for how to validly abrogate State sovereign immunity,” and the senators say they need to identify a pattern of unconstitutional infringement before enactment of any new law.

“It is on this point that we request … expertise and advice,” states the letter, adding that as part of the analysis the offices “should consider the extent to which such infringements appear to be based on intentional or reckless conduct.”

In actuality, the Copyright Remedy Clarification Act didn’t come without study. The Register of Copyrights did prepare a report that led to those old laws that the Supreme Court struck down as unconstitutional.

Now the scene is set for another attempt. The senators say they want findings no later than April 30, 2021.

A year isn’t much time, but the U.S. Copyright Office and the U.S. Patent and Trademark Office is likely to get cooperation from IP lobbyists, including the Recording Industry Association of America, which has been active on the subject. The offices also figure to hear from Rupert Murdoch’s Dow Jones, which filed an amicus brief at the Supreme Court, sharing how California’s pension fund had infringed thousands of the company’s articles.

This article originally appeared in THR.com.



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