While the idea of a state infringing on intellectual property rights might seem a bit strange, it does happen. For instance, in June 2017 the popular blog Naked Capitalism—which focuses on issues pertaining to politics and economics—made a rather startling discovery. A website run by CalPERS, the California agency which manages pensions for public employees, has been posting news articles in their entirety since 2009, without providing any compensation. In total, the website has posted more than 50,000 articles, taken from the sites of major publications including the New York Times, Wall Street Journal, Washington Post, Los Angeles Times, and Sacramento Bee.
Incidents like this raise the question, is it possible to sue a state government if they infringe on your patent or copyright?
For the most part, the answer is no. This is due to the Eleventh Amendment of the U.S. Constitution, which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The import of the Eleventh Amendment is that state governments have sovereign immunity, which prevents individuals and private parties from suing them in court for money damages.
Back in 1990, Congress attempted to address this by passing the Copyright Remedy Clarification Act, which was designed to allow states and the entities they operate to be sued for copyright infringement. However, the legislation was subsequently struck down by the Supreme Court and numerous circuit courts, because it clearly abrogated the sovereign immunity granted to states by the Eleventh Amendment. While plaintiffs have brought a number of infringement cases against U.S. states, as recently as 2016 these cases have been dismissed on grounds of sovereign immunity.
This is why, while it’s plainly obvious that the State of California committed copyright infringement in the CalPERS case, the parties whose work was republished without authorization will not be able to sue for damages.
However, it is still possible to stop state entities from committing patent infringement.
Despite the limitations of the Eleventh Amendment, it is still possible to sue in federal court for an injunction. If a court finds that infringement occurred, an injunction is issued which requires that the infringing activities be ceased (e.g. in the case of CalPERS, they would be required to remove the infringing material from their website, and to not post further articles).
In addition, in some circumstances it might be possible to sue the individual state officials who committed infringement.
Of course, if a state sues a patent holder, then the state consents to be sued for all of the patent holder’s related counter claims. Unsurprisingly, states rarely choose this path.
If you believe that California or another state is infringing upon your intellectual property, it would be advisable for you to consult with a copyright and patent attorney. Intellectual property law is extremely complex, even before you factor in the complication of sovereign immunity. For more information, you can contact the Law Office of Michael O’Brien by calling us at 916-760-8265, or by using our site’s contact form to send us an email.