In the case of Allen v. Cooper, the Supreme Court of the United States ruled that the State of North Carolina had sovereign immunity from liability for copyright infringement lawsuits, and that Congress’ attempt to remove that immunity was unconstitutional. However, the Court did suggest that Congress could fashion a remedy based upon a legislative record which supported such an action. It suggested that Congress may validly abrogate sovereign immunity if it has a sufficient record of unconstitutional infringement by states. To this end, the Copyright Office filed a Notice of Inquiry (NOI) inviting public comments in an attempt to determine whether such a legislative record was possible. The full report was published August 31, 2021. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., analyzes the findings of the 110 page report, and finds that what the Copyright Office recommends is less than decisive.
