[voakbasda]

IANAL, but they may not be ignoring those laws; they may be planning to fight them. That cannot happen without standing, which may be easiest to obtain by trying to move forward with this plan.

I suspect they would be breaking federal laws, so I believe consideration of the State's 10th Amendment rights applies here. That would be wonderful and hope that this case brings that topic into the spotlight, because I see 90% of the federal government as being grossly unconstitutional on that basis alone.

Personally, I suspect the market leaders would not want to face the courts, because the exposure would be horrible PR that affects all of their product lines. Moreover, an aggressive and concerted effort to block this effort should be viewed as the anti-competitive behavior of a cartel, which is the status quo de facto that the State is effectively trying to disrupt.

I don't see such a challenge as anything but a lose-lose for those companies. Hopefully, they take the bait and do something stupid that leads to reform at the national level.

[kmeisthax]

We already have precedent for a state outright saying "fuck copyright": Blackbeard's Law[0]. North Carolina copied a photographer's images and then passed a law saying the images were part of the public record and thus not copyrightable. The photographer sued to get the law repealed but SCOTUS decided that sovereign immunity meant there was no standing to overturn the law.

An interesting wrinkle is that Congress already foresaw this and passed a law decades ago waiving state sovereign immunity for patent and copyright claims. But then SCOTUS overturned the patent prong of this federal waiver on the grounds that Congress hadn't proven that states had a pattern of telling patent holders to go fuck themselves. And SCOTUS's reasoning for striking down the suit about Blackbeard's Law was that this also held true for the copyright prong of that law... despite being handed a brazen example of a state nullifying copyright law for their own gain on a silver platter.

What this technically means is that your state could, tomorrow, run their own pirate streaming site and not get sued for it[1]. The only way to stop it legally would be to sue end users, which would be difficult to do for a direct download service[2].

As for antitrust and cartels, since copyright and patents are legal, government-granted monopolies, most courts are very loathe to attack them even when they are used in ways that violate antitrust law. You can see this in FTC v. Qualcomm, where an appeals court smacked down an antitrust ruling for this reason. Compounding this is the fact that a very large contingent of judges have been slowly nullifying antitrust since the 1980s under the "consumer welfare" theory that every tech company is built to maximally exploit.

I could see California getting away with bloodying Eli Lily & Co's nose. But I would not count on this becoming a future model for evading (ab)use of the patent system. Remember, all the states are still part of a federal government that is very much in favor of the patent system as currently constituted, and there are still things they can do to block California.

[0] https://nsglc.olemiss.edu/blog/2020/apr/2/index.html

[1] Assuming your state had not already waived sovereign immunity for copyright

[2] It's commonly believed that you can't sue for downloads, only uploads. This isn't quite true. At least one court has outright said that both are illegal but infringe on different exclusive rights. I don't remember which court.