Perhaps the only exception to the rule that every rule has its exceptions is the law of unintended consequences. An example may be found in the Supreme Court’s 2020 ruling in Allen v. Cooper. Seeking to protect the rights of states against the federal judiciary, the Court ruled that states are immune from suit in federal court for copyright infringement. As a consequence, the only courts with jurisdiction over copyright infringement cases were summarily closed to copyright owners who found themselves the victims of state piracy of their works.

Copyright owners thus find themselves in a materially weakened position relative to state entities, and states find themselves with court-sanctioned impunity to violate copyrights. The robust right to a remedy at law for infringement of intellectual property rights has served to make intellectual property one of the most valuable components of United States commerce, enriching lives in the United States and around the world. If states can violate this right with impunity, the incentive to creativity envisioned by the Intellectual Property Clause will materially weaken, and “Science and useful Arts” will undoubtedly suffer.

Necessity is, as they say, the mother of invention, and this Comment argues that the consequences of Allen constitute a necessity which must lead to the invention of a new remedy for copyright owners whose work is infringed by state entities. This Comment focuses on the prudential and policy arguments for using the author’s property interest in the tangible manifestations of a copyrighted work as a proxy for the copyrighted work itself in a new application of the Takings Clause of the Fifth Amendment to copyright. Prudentially, this proposal would remedy the problem by applying a legal theory sufficiently certain in its requirements and consistent in its application to make it workable. As to policy, this Comment would bring the practical outcomes of intellectual property litigation against states back into line with the policy goals of the Intellectual Property Clause, the Takings Clause, and the Copyright Act. This Comment thereby seeks to solve the problem caused by the unintended consequences of Allen and return to the robust intellectual policy protections envisioned by the Constitution and laws of the United States.

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