[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Notices]
[Pages 34252-34256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12019]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2020-9]


Sovereign Immunity Study: Notice and Request for Public Comment

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office is initiating a study to evaluate 
the degree to which copyright owners are experiencing infringement by 
state entities without adequate remedies under state law, as well as 
the extent to which such infringements appear to be based on 
intentional or reckless conduct. The Office seeks public input on this 
topic to assist it in preparing a report to Congress.

DATES: Written comments are due on or before August 3, 2020.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office website 
at http://www.copyright.gov/docs/sovereignimmunitystudy. If electronic 
submission of comments is not feasible due to lack of access to a 
computer and/or the internet, please contact the Office, using the 
contact information below, for special instructions.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, [email protected]; Kevin R. Amer, 
Deputy General Counsel, [email protected]; or Mark T. Gray, Attorney-
Advisor, [email protected]. They can be reached by telephone at 202-707-
3000.

SUPPLEMENTARY INFORMATION: On March 23, 2020, the Supreme Court issued 
its decision in Allen v. Cooper,\1\ holding that the Copyright Remedy 
Clarification Act of 1990 (``CRCA''), which attempted to make states 
subject to liability for copyright infringement to the same extent as 
other parties, did not validly abrogate states' sovereign immunity 
against suit. Following the decision, Senators Thom Tillis and Patrick 
Leahy sent a letter to the Copyright Office requesting that the Office 
``research this issue to determine whether there is sufficient basis 
for federal legislation

[[Page 34253]]

abrogating State sovereign immunity when States infringe copyrights.'' 
\2\
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    \1\ 140 S. Ct. 994 (2020).
    \2\ Letter from Sens. Thom Tillis & Patrick Leahy to Maria 
Strong, Acting Register of Copyrights, U.S. Copyright Office at 1 
(Apr. 28, 2020), available at https://www.copyright.gov/rulemaking/state-sovereign-immunity/letter.pdf (``Request Letter'').
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I. Background

a. The Copyright Remedy Clarification Act

    Under the doctrine of sovereign immunity, ``a federal court 
generally may not hear a suit brought by any person against a 
nonconsenting State.'' \3\ The Fourteenth Amendment to the 
Constitution, however, ``can authorize Congress to strip the States of 
immunity.'' \4\ Section 1 of that Amendment provides that states may 
not ``deprive any person of life, liberty, or property, without due 
process of law,'' \5\ and section 5 gives Congress the ``power to 
enforce, by appropriate legislation,'' those prohibitions,\6\ including 
by subjecting states to suit in federal court.\7\
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    \3\ Allen, 140 S. Ct. at 1000.
    \4\ Id. at 1003.
    \5\ U.S. Const. amend. XIV, sec. 1.
    \6\ U.S. Const. amend. XIV, sec. 5.
    \7\ Allen, 140 S. Ct. at 1003.
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    Enacted on November 15, 1990, the CRCA amended the Copyright Act to 
expressly provide that states are not immune from suit for copyright 
infringement.\8\ Congress adopted the legislation in response to a 1985 
Supreme Court decision, Atascadero State Hospital v. Scanlon, in which 
the Court held that to abrogate state sovereign immunity under the 
Fourteenth Amendment, Congress must use ``unequivocal'' language making 
its intention explicit.\9\ At the time, the Copyright Act was silent on 
whether states were subject to liability,\10\ although some pre-
Atascadero courts had held that Congress intended states to be subject 
to infringement claims.\11\ Shortly after the Atascadero decision, 
Congress asked then-Register of Copyrights Ralph Oman to study what 
``practical problems'' copyright owners faced in enforcing their rights 
against state governments.\12\ The Office subsequently issued a request 
for public comment \13\ and received approximately forty responses.\14\ 
Most comments were submitted by copyright owners, some of whom 
expressed concern about the risk of future infringement by state 
entities, while others discussed past acts of infringement committed by 
states.\15\ The Office summarized these comments in a public report 
(the ``Oman Report''), which ultimately recommended that Congress 
``amend the Copyright Act . . . to ensure that copyright owners have an 
effective remedy against infringing states.'' \16\
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    \8\ Public Law 101-553, sec. 2(a)(2), 101 Stat. 2749 (1990), 
codified at 17 U.S.C. 511.
    \9\ 473 U.S. 234, 247 (1985).
    \10\ See 17 U.S.C. 501(a) (1977) (``Anyone who violates any of 
the exclusive rights of the copyright owner as provided by sections 
106 through 118, or who imports copies or phonorecords into the 
United States in violation of section 602, is an infringer of the 
copyright.'').
    \11\ See Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (9th 
Cir. 1979) (affirming copyright damages and attorneys' fees award 
under 1909 Act because language providing for damages against 
infringers was ``sweeping and without apparent limitation, 
suggesting that Congress intended to include states within the class 
of defendants''); Johnson v. Univ. of Va., 606 F. Supp. 321, 324 
(W.D. Va. 1985) (``[B]ased on the Mills Music analysis of the 1909 
Act, and this court's examination of the operative language of the 
1976 Act, the court determines that the 1976 Act waived the states' 
Eleventh Amendment immunity from liability for damages and equitable 
relief for copyright infringements.''). But see Wihtol v. Crow, 309 
F.2d 777, 782 (8th Cir. 1962) (dismissing copyright claim against 
school district on Eleventh Amendment grounds because the district 
was ``an instrumentality of the State of Iowa, constituting a part 
of its educational system and engaged in performing a state 
governmental function under state law and at state expense'').
    \12\ Letter from Reps. Robert W. Kastenmeier & Carlos Moorhead, 
Subcomm. on Courts, Civil Liberties and the Administration of 
Justice of the H. Comm. on the Judiciary, to Ralph Oman, Register of 
Copyrights, U.S. Copyright Office at 1 (Aug. 3, 1987), reproduced in 
U.S. Copyright Office, Copyright Liability of States and the 
Eleventh Amendment, A Report of the Register of Copyrights (June 
1988), https://www.copyright.gov/reports/copyright-liability-of-states-1988.pdf.
    \13\ Request for Information: Eleventh Amendment, 52 FR 42045 
(Nov. 2, 1987).
    \14\ The public comments can be viewed at https://archive.org/details/Copyright11thAmendmentStudyComments.
    \15\ U.S. Copyright Office, Copyright Liability of States and 
the Eleventh Amendment: A Report of the Register of Copyrights 6 
(June 1988) (``Oman Report'') (``The major concern of copyright 
owners appears to be widespread, uncontrollable copying of their 
works without remuneration''), available at https://www.copyright.gov/reports/copyright-liability-of-states-1988.pdf. 
The CRCA's legislative history reveals similar concerns about 
prospective infringement. See Copyright Remedy Clarification Act and 
Copyright Office Report on Copyright Liability of States, Hearings 
Before the Subcomm. on Courts, Intellectual Property, and the 
Administration of Justice of the H. Comm. on the Judiciary, 101st 
Cong. 102 (1989) (testimony of Barbara Ringer, former Register of 
Copyrights) (until Atascadero, states believed ``you have got to 
pay,'' but now ``their lawyers are going to tell them you don't have 
to pay,'' and ``gradually, and maybe not so gradually, this free 
ride will become quite the rule rather than the exception unless you 
do something''); Copyright Remedy Clarification Act, Hearing Before 
the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. 
on the Judiciary, 101st Cong. 69 (1989) (prepared statement of 
Copyright Remedies Coalition) (expressing concern that ``states may 
well confuse insulation from damages with full immunity from any 
copyright liability, causing them to believe that their activities 
are beyond the reach of the Copyright Act'').
    \16\ Oman Report at 104. The Office's specific legislative 
recommendations turned on whether Congress could abrogate state 
immunity under Article I, section 8, clause 8 of the Constitution 
(the ``Intellectual Property Clause''). The Supreme Court had not 
yet addressed that question. Shortly before the report was 
completed, however, the Court granted certiorari in United States v. 
Union Gas Co., 832 F.2d 1343, 1356 (3d Cir. 1987), certiorari 
granted sub nom. Pennsylvania v. Union Gas Co., 485 U.S. 958 (1988), 
in which the Third Circuit had held that Article I could be a basis 
for abrogation. The Oman Report recommended that if the Supreme 
Court affirmed that decision, Congress should revise section 501 of 
the Copyright Act to ``clarify its intent to abrogate states' 
Eleventh Amendment Immunity pursuant to its [Intellectual Property 
Clause] power.'' Oman Report at 104. Otherwise, the Report 
recommended that Congress ``amend the jurisdictional provision in 28 
U.S.C. 1338(a), to provide that where states are defendants, private 
individuals may sue them in state court for copyright damages.'' Id. 
at 104-05.
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    After the Office issued its report, the CRCA was introduced in 
Congress, and Congress held hearings on the issue of state 
infringement. The final legislation amended the Copyright Act to 
provide that ``[a]ny State, any instrumentality of a State, and any 
officer or employee of a State or instrumentality of a State acting in 
his or her official capacity, shall not be immune, under the Eleventh 
Amendment . . . or under any other doctrine of sovereign immunity, from 
suit in Federal court by any person'' for copyright infringement.\17\ 
It further provided that ``[a]ny State . . . shall be subject to the 
provisions of this title in the same manner and to the same extent as 
any nongovernmental entity.'' \18\
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    \17\ 17 U.S.C. 511(a); see also id. at 511(b) (``In a suit 
described in subsection (a) for a violation described in that 
subsection, remedies (including remedies both at law and in equity) 
are available for the violation to the same extent as such remedies 
are available for such a violation in a suit against any public or 
private entity other than a State, instrumentality of a State, or 
officer or employee of a State acting in his or her official 
capacity.'').
    \18\ Id. at 501(a).
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b. Florida Prepaid v. College Savings Bank

    Nine years after enactment of the CRCA, the Supreme Court issued an 
opinion in Florida Prepaid Postsecondary Education Expense Board v. 
College Savings Bank,\19\ which addressed whether Congress had validly 
abrogated states' immunity from patent infringement suits when it 
adopted the Patent Remedy Act. In Florida Prepaid, the Court set out a 
number of requirements that Congress needed to meet for such abrogation 
to constitute a valid exercise of Congress's authority under section 5 
of the Fourteenth Amendment. First, Congress was required to identify a 
``pattern of patent infringement'' by state governments.\20\ Second, 
the infringement must constitute a violation of the Fourteenth 
Amendment such that patent owners

[[Page 34254]]

were being deprived of property ``without due process of law.'' \21\ 
The Court explained that such a deprivation occurs ``only where the 
State provides no remedy, or only inadequate remedies, to injured 
patent owners for its infringement of their patent.'' \22\ The Court 
cautioned that, because states do not violate due process when they 
commit a ``negligent act that causes unintended injury to a person's 
property,'' patent infringement that was merely negligent rather than 
intentional or reckless did not violate the Fourteenth Amendment.\23\ 
Third, there must be ``congruence and proportionality'' between the 
constitutional violations Congress seeks to remedy and the means 
adopted for that purpose.\24\
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    \19\ 527 U.S. 627 (1999).
    \20\ Id. at 640.
    \21\ Id. at 642.
    \22\ Id. at 643.
    \23\ Id. at 645.
    \24\ Id. at 639 (quoting City of Boerne v. Flores, 521 U.S. 507, 
520 (1997)).
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    The Court in Florida Prepaid struck down the Patent Remedy Act for 
failure to meet these requirements. It concluded that Congress had not 
identified a pattern of infringement because (1) Congress had ``little 
evidence of infringing conduct'' by state actors; \25\ (2) Congress 
``barely considered'' the adequacy of state-law remedies for patent 
infringement by the state; \26\ (3) the legislative record did not 
reflect a pattern of intentional or reckless infringements, but instead 
consisted only of ``a handful of instances of state patent infringement 
that do not necessarily violate the Constitution''; \27\ and (4) the 
legislation was not limited to ``cases involving arguable 
constitutional violations, such as where a State refuses to offer any 
state-court remedy,'' or cases where the infringement was not negligent 
or committed pursuant to state policy.\28\ After the Court's decision, 
Congress considered, but did not pass, legislation that would have 
conditioned states' ability to recover damages for infringement of 
their own intellectual property on their waiver of immunity to 
infringement damages.\29\
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    \25\ Id. at 640-41.
    \26\ Id. at 643-44.
    \27\ Id. at 645-66.
    \28\ Id. at 646-47.
    \29\ See Sovereign Immunity and Protection of Intellectual 
Property, Hearing Before Senate Comm. on the Judiciary, 107th Cong. 
3-4 (Feb. 27, 2000) (prepared statement of Sen. Patrick Leahy), 
https://www.govinfo.gov/content/pkg/CHRG-107shrg85184/pdf/CHRG-107shrg85184.pdf (discussing Intellectual Property Protection 
Restoration Act of 2001 and stating that ``no condition could be 
more reasonable or proportionate than the condition that in order to 
obtain full protection for your federal intellectual property 
rights, you must respect those of others''); Intellectual Property 
Restoration Act of 2003, Hearing Before House Subcomm. on Courts, 
the internet, and Intellectual Property, 108th Cong. (June 17, 2003) 
(prepared statement of Marybeth Peters, Register of Copyrights), 
available at https://www.copyright.gov/docs/regstat061703.html 
(stating that proposed legislation ``provides significant incentives 
for a State to waive its immunity, but does so in a way that is 
inherently proportional and fair to the States and copyright 
owners'').
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c. Allen v. Cooper

    This year, the Supreme Court decided Allen v. Cooper, a case 
considering the validity of the CRCA's abrogation of state immunity. In 
Allen, a videographer brought an infringement action against North 
Carolina after the state published his videos and photographs of a 
sunken pirate ship online without authorization. North Carolina 
contended that it was immune to suit and that the CRCA failed to 
properly abrogate its immunity. Applying the analysis from Florida 
Prepaid, the Court held that the CRCA failed the congruence and 
proportionality test for substantially the same reasons that applied to 
the Patent Remedy Act.\30\ With respect to the legislative record, the 
Court found the evidence of copyright infringement supporting the CRCA 
to be ``scarcely more impressive than what the Florida Prepaid Court 
saw,'' amounting to ``only a dozen possible examples of state 
infringement.'' \31\ The Court also pointed to congressional testimony 
and statements by Members of Congress suggesting that copyright 
infringement by states currently was not a widespread problem.\32\
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    \30\ Allen, 140 S. Ct. at 999.
    \31\ Id. at 1006.
    \32\ Id.
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    The Court further held that Congress had failed to make a 
sufficient showing of unconstitutional infringement by states. Under 
its precedent, the Court noted, ``a merely negligent act does not 
`deprive' a person of property,'' and therefore ``an infringement must 
be intentional, or at least reckless, to come within the reach of the 
Due Process Clause.'' \33\ In the case of the CRCA, only two of the 
infringements cited in the legislative record appeared to be 
intentional.\34\ Moreover, the record contained ``no information about 
the availability of state-law remedies for copyright infringement (such 
as contract or unjust enrichment suits)--even though they might 
themselves satisfy due process.'' \35\ The Court thus concluded that 
the balance struck by the CRCA ``between constitutional wrong and 
statutory remedy'' was ``askew.'' \36\ The ``exceedingly slight'' 
evidence of Fourteenth Amendment injury, combined with the fact that 
the statute extended to ``every infringement case against a State,'' 
meant that ``the law's `indiscriminate scope' [was] `out of proportion' 
to any due process problem.'' \37\
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    \33\ Id. at 1004. The Court had previously reserved, but not 
decided, the question ``whether reckless conduct suffices'' to 
violate due process. Id. (citing Daniels v. Williams, 474 U.S. 327, 
334 n.3 (1986)).
    \34\ Id. at 1006.
    \35\ Id. at 1006-07.
    \36\ Id. at 1007.
    \37\ Id. (quoting Florida Prepaid, 527 U.S. at 646-47).
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    At the conclusion of the opinion, the Court observed that its 
decision ``need not prevent Congress from passing a valid copyright 
abrogation law in the future.'' \38\ It noted that in adopting the 
CRCA, ``Congress acted before this Court created the `congruence and 
proportionality' test,'' and therefore it ``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.'' \39\ Under that standard, ``if 
[Congress] detects violations of due process, then it may enact a 
proportionate response,'' and [t]hat kind of tailored statute can 
effectively stop States from behaving as copyright pirates.'' \40\
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    \38\ Id.; see also id. at 1009 (Breyer, J., concurring) (``One 
might . . . expect that someone injured by a State's violation of 
[its] duty [not to infringe copyright] could `resort to the laws of 
his country for a remedy,' . . . . Or more concretely, one might 
think that Walt Disney Pictures could sue a State (or anyone else) 
for hosting an unlicensed screening of the studio's 2003 blockbuster 
film, Pirates of the Caribbean (or any one of its many sequels).'' 
(citation omitted)).
    \39\ Id. at 1007.
    \40\ Id.
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d. Current Study

    On April 28, 2020, Senators Thom Tillis and Patrick Leahy sent a 
letter to the Copyright Office noting that the Allen decision has 
``created a situation in which copyright owners are without remedy if a 
State infringes their copyright and claims State sovereign immunity,'' 
and expressing concern ``about the impact this may have on American 
creators and innovators.'' \41\ The letter states that the Senators 
``have heard from affected copyright owners that in recent years State 
infringements of copyright have become much more common.'' \42\ To 
determine whether there is a sufficient basis for federal legislation, 
the letter asks that the Office ``study the extent to which copyright 
owners are experiencing infringements by state entities without 
adequate remedies under state law. As part of this analysis, the Office 
should consider the

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extent to which such infringements appear to be based on intentional or 
reckless conduct.'' \43\ The letter requests that the Office provide a 
public report summarizing the findings of this study, as well as the 
facts and analyses upon which those findings are based, by April 30, 
2021.\44\
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    \41\ Request Letter at 1.
    \42\ Id. at 2.
    \43\ Id.
    \44\ Id. Senators Tillis and Leahy also sent a letter to the 
Patent and Trademark Office requesting a study of patent and 
trademark infringement by state entities. See Letter from Sens. Thom 
Tillis & Patrick Leahy to Andrei Iancu, Director, U.S. Patent and 
Trademark Office (Apr. 28, 2020).
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    Pursuant to this request, the Office is seeking public input in 
multiple phases. The Office is providing 60 days for written comments 
from interested parties on the topics outlined below. To fulfill the 
request from Congress and the requirements of the Court, the Office 
seeks factual evidence and other verifiable information to support this 
inquiry. For each question, to the extent available, please include 
empirical data or other quantitative analysis in your response. If 
describing a litigation matter, please include information sufficient 
for the Office to identify such matter, such as the relevant court, 
docket number, asserted claims, and dates. As applicable, the Office 
encourages commenters to append relevant materials, such as pleadings, 
opinions, or other documentary evidence, in support of their comments. 
If participants currently gathering empirical research and analyses 
find themselves unable to complete them within the 60-day period for 
submissions, they are encouraged to contact the Office promptly, 
describing the nature of the research and indicating the time required 
for completion. To the extent possible, the Office will seek to 
accommodate such submissions by providing an additional comment period 
limited to the provision of empirical data at a later date, but 
encourages all commenters to meet the noticed deadline if possible, so 
that the Office may fully consider the submissions in light of the 
congressional deadline.
    After this comment period has closed, the Office intends to host 
one or more public roundtables to seek additional input, potentially 
virtually. The Office may request further written comments on 
particular issues discussed in response to this notice and/or at the 
public roundtables.

II. Subjects of Inquiry

    The Copyright Office invites written comments on the subjects 
below. A party choosing to respond to this Notice of Inquiry need not 
address every subject, but the Office requests that responding parties 
clearly identify and separately address each subject for which a 
response is submitted. The Office also requests that commenters explain 
their interest in the study and, with respect to each answer, the basis 
for their knowledge (e.g., the commenter is a copyright owner, artist, 
academic, or state official).
    1. Please provide information regarding specific instances of 
infringing conduct committed by a state government entity, officer, or 
employee, including, where relevant:
    a. The work(s) infringed;
    b. The act(s) of alleged infringement;
    c. When the infringement occurred;
    d. The state actor(s) who committed the infringement;
    e. Whether the infringement was intentional or reckless, and the 
basis for that conclusion;
    f. Whether the infringement was committed pursuant to a state 
policy;
    g. Whether the state was contacted by or on behalf of the copyright 
owner in response to the infringement, and if so, how the state 
responded;
    h. Whether a lawsuit was filed as a result of the infringement, and 
if so, where the case was filed, what claim(s) were brought regarding 
the infringement, whether the case remains pending, and if not, how it 
was resolved; and
    i. If a lawsuit was not filed, why the copyright owner chose not to 
do so, including whether it attempted to resolve the matter privately 
in lieu of litigation, and any relevant details with respect to those 
attempts.
    2. To what extent does state sovereign immunity affect the 
licensing or sale of copies of copyrighted works to state entities? For 
example:
    a. Do copyright owners provide different payment or licensing terms 
in transactions with state entities than are provided in transactions 
with other parties?
    b. Have copyright owners changed aspects of their sales or 
licensing practices as a result of state sovereign immunity?
    c. Do different states or state entities take different approaches 
to working with copyrighted material? Are there particular states that 
more frequently infringe?
    3. What remedies are available for copyright owners when states 
infringe their works?
    a. To what extent did copyright owners file suits under the 
Copyright Act against state entities prior to the Supreme Court's 
decision in Allen v. Cooper?
    b. In your opinion, does the availability of injunctive relief 
against state officials provide an adequate remedy to address the needs 
of copyright owners in response to instances of state copyright 
infringement?
    c. To what extent are there state law causes of action that may 
provide a remedy for copyright infringements by state entities? Are 
there state court cases in which a copyright owner has been awarded a 
judgment on such a claim?
    d. To the extent state law provides a cause of action relevant to 
copyright infringement, how do the elements of the cause of action and/
or available remedies differ from those applicable to claims under the 
Copyright Act?
    e. In your opinion, are those remedies adequate to address the 
needs of copyright owners in response to instances of state copyright 
infringement?
    4. How can Congress determine whether copyright infringement by a 
state is common or infrequent? What metrics should be used in making 
such a determination?
    5. Has the prevalence of infringement by states increased in recent 
years?
    a. What empirical evidence is available to determine whether and to 
what extent there has been a change over time?
    b. To what extent, if any, have instances of actual or threatened 
infringement by states increased since the decision in Allen, or can 
they be expected to increase?
    6. How do different states handle claims of infringement? Please 
discuss, as relevant:
    a. Whether any state agencies carry insurance policies that would 
cover infringement by a state employee, and if so, whether those 
insurance policies distinguish between infringement that is 
intentional, reckless, or negligent;
    b. Any laws, regulations, or policies that state entities have 
adopted to minimize the likelihood of, or to provide a remedy for, 
copyright infringement by a state entity;
    c. How frequently copyright owners claim a state actor has 
infringed their rights, either privately or in litigation;
    d. How state entities typically respond to credible claims of 
copyright infringement, including any formal or informal policies 
providing for negotiations with or payment to the copyright owner, as 
well as whether the Attorney General's office is notified of such 
claims;
    e. What state entities are eligible to assert sovereign immunity as 
a defense to copyright infringement claims;
    f. Whether state entities have the right to waive sovereign 
immunity as a defense to an infringement lawsuit in

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federal court, and what authority permits or prevents such waiver; and
    g. Whether any states record and/or track copyright infringement 
claims received by state entities.
    7. Please identify any pertinent issues not referenced above that 
the Copyright Office should consider in conducting its study.

    Dated: May 29, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-12019 Filed 6-2-20; 8:45 am]
 BILLING CODE 1410-30-P