Organizations representing libraries and archives filed an amicus brief in the U.S. Supreme Court in Allen v. Cooper, a case concerning the constitutionality of a statute that seeks to limit the sovereign immunity of state governments against claims for copyright infringement. The amicus brief focuses on the negative impact the elimination of sovereign immunity would have on digital preservation.
Many libraries and archives are run by state governments and thus enjoy sovereign immunity. The elimination of sovereign immunity with respect to copyright claims would have a negative impact on the digital preservation activities of these state-run collecting institutions. Digital technology offers libraries an unprecedented ability to preserve the valuable works in their collections. These digital preservation activities implicate the Copyright Act’s reproduction and distribution rights, forcing libraries to rely upon the fair use right, 17 U.S.C. § 107, in order to engage in the preservation activities. However, the precise boundaries of the preservation activities permitted by fair use are not certain. Sovereign immunity currently allows state-run libraries and archives to manage this uncertainty by limiting their exposure to damages liability. The elimination of sovereign immunity would expose these collecting institutions to significant damages liability, potentially resulting in a dramatic decrease in digital preservation activity. This will place our cultural heritage at risk.
Read the brief here: https://www.supremecourt.gov/DocketPDF/18/18-877/117307/20190927135129705_38484%20pdf%20Band.pdf
