The Great State of Texas may well have had more songs written about it-surely more good songs, in any event-than any other state of the Union.1 The state also makes fairly aggressive efforts to market itself for purposes of attracting tourism, business, and new residents. So what would happen if the state decided to tap into its rich musical resources by using one of these songs as a promotional jingle?2 If this were done without the permission of the original artist, the state might expect a federal copyright lawsuit to recover damages for infringement of the artist's rights under federal intellectual property law.
Such a suit would clearly fail, however, under current law. In two companion cases decided during the October 1998 Term, the Supreme Court raised significant barriers to federal intellectual property suits against state governments. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank held that the constitutional doctrine of state sovereign immunity blocked Congress's effort to subject states to liability for patent infringement under the Patent and Plant Variety Protection Remedy Clarification Act (PRCA).3 The other case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, similarly held that Congress could not subject states to damages liability for false advertising under the Lanham Act.4 While neither of these cases dealt with the copyright laws implicated by our hypothetical, the Fifth Circuit has already relied on Florida Prepaid and College Savings Bank to also bar copyright suits against state entities.5
These developments have sparked efforts in Congress to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. Senator Patrick Leahy of Vermont has introduced the Intellectual Property Protection Restoration Act of 1999, which is designed to guarantee remedies for intellectual property violations by state governmental actors.6 And the U.S. Patent and Trademark Office recently held a conference where experts discussed the Leahy Bill and similar proposals.7 Given the widespread support among beneficiaries of federal intellectual property rights for some sort of legislative action, it appears likely that either some version of the Leahy Bill or some other proposal with similar objectives will ultimately become law.
In this Article, we consider what form such legislation ought to take in order to withstand future constitutional challenge. We focus primarily on Senator Leahy's proposal, both because it is so far the only bill formally put before Congress and because it represents a quite sophisticated effort to come to grips with the relevant constitutional doctrines.8 As we will explain in the pages that follow, we are convinced that many aspects of Senator Leahy's analysis are sound. We would not be legal academics, however, if we did not offer some criticisms and variant proposals of our own. And on some points-particularly the bill's effort to condition federal protection for state innovation on waivers of sovereign immunity-our objections are fairly fundamental.
It may help to make two assumptions clear at the outset. First, we take as given the Rehnquist Court's current jurisprudence on state sovereign immunity9 and the scope of Congress's remedial authority for violations of constitutional rights.10 While many have questioned the Court's approach in both these areas,11 the Court's current majority seems unlikely to abandon its present course and stare decisis may make future changes of direction difficult, even in the event of personnel changes on the bench.12 In any event, a general analysis from first principles of state sovereign immunity or Congress's authority under the Reconstruction Amendments is outside the scope of this Article.
Second, we do not undertake a systematic analysis of the extent to which state governmental entities ought to be subject to the federal intellectual property laws. …