Sovereign Immunity and Intellectual Property

Abstract

Should states have constitutional sovereign immunity in copyright and patent lawsuits? In Florida Prepaid, the Court said the answer is yes, but many have argued that this is (even setting aside the various textual, originalist, or precedential arguments) just plain silly. A simple analogy, critics suggest, proves this: Why should government-run UCLA be treated differently from privately-run USC? This short (8-page) article points to two alternative analogies that suggest sovereign immunity in such cases may not be so odd or unjust after all. First, why should state-run UCLA be treated differently from the federally-run Department of Defense? The federal government has long asserted its sovereign immunity in copyright and patent cases, subject only to a Takings-Clause-based lawsuit for just compensation in the Court of Federal Claims. This, as it happens, is pretty close to what is left after Florida Prepaid for state infringements. Second, why should state infringements of intellectual property be treated differently from state infringements of real or personal property? Governments routinely interfere with private property rights, subject only to a Takings-Clause-based lawsuit for just compensation; and intellectual property hawks often argue that intellectual property rights should be entitled to the same respect as other property rights are. And Florida Prepaid leaves intellectual property owners in pretty much the same situation as other property owners. The article concludes that state sovereign immunity might or might not be constitutionally mandated or wise -- but that simple analogies between state government infringements and private infringements can't go far to resolve this matter.