by Dennis Crouch
Allen v. Cooper (Supreme Court 2019)
In this copyright case, the Supreme Court is wrestling with the question of sovereign immunity. Does the 11th Amendment shelter States (North Carolina in this case) from copyright infringement lawsuits. The plaintiff — Frederick Allen — documented the 1998 salvage of the Pirate Blackbeard’s ship Queen Anne’s Revenge that sank near the North Carolina coast in 1718. North Carolina wanted to use Allen’s copyrighted material, but didn’t want to pay. The state legislature stepped in with “Blackbeard’s Law” — designating all photos, videos, and other documentary materials of shipwrecks to be public records. Allen then sued N.C. for infringement (Cooper is N.C. Governor).
In the background is the Copyright Remedy Clarification Act (CRCA) of 1990 that expressly abrogates state immunity in the area of copyright law:
Any State … shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal Court … for a violation of any of the exclusive rights of a copyright owner….
17 USC 511(a). The basic question in the case is whether CRCA is unconstitutional:
Whether Congress validly abrogated state sovereign immunity via the CRCA in providing remedies for authors of original expression whose federal copyrights are infringed by states.
In some ways this case can be seen as a follow-on to Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). In that patent case, a 5-4 Supreme Court held that Congress had improperly authorized patent infringement lawsuits against States. The area of law has seen further development since 1999, including an important bankruptcy-related decision in Central Virginia Community College v. Katz, 546 U.S. 356 (2006).
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The Supreme Court held oral arguments in the case on November 5, 2019.
Allen’s basic argument is that state immunity is inconsistent with constitutional power of “securing … exclusive rights.” Further, the 14th Amendment is seen as providing additional power to Congress to ensure that each state provides due process and equal protection. However, the Supreme Court requires actual constitutional violations before Congress can legislate in this area. [Oral Argument Transcript]
Arguing on behalf of the copyright holder, Derek Shaffer explains:
MR. SHAFFER: Exclusive against whom, Your Honors? Exclusive against all comers, exclusive against the world, including the government and including states.
The key problem with N.C.’s argument is that it goes against the Court’s reasoning in Florida Prepaid.
JUSTICE GINSBURG: All — all that is — would be highly persuasive if we didn’t have the patent decision, the Florida Prepaid decision. It is the very same clause. It’s the very same secure. It’s the very same exclusivity.
MR. SHAFFER: Correct, Justice Ginsburg. But the Court was not examining the text. The Court was not examining the clause. . . . That wasn’t before the Court. It wasn’t even raised before the Court.
JUSTICE KAGAN: If you are right, we would then have to go back to Florida Prepaid, right, and topple that rule?
MR. SHAFFER: It would be certainly open to folks in patent cases to make that argument, Justice Kagan.
JUSTICE ALITO: So, basically, you’re asking us to overrule Florida Prepaid?
MR. SHAFFER: I’m asking this Court to follow Katz, Justice Alito, where I think Florida Prepaid was [already] overruled. [See Central Virginia Community College v. Katz, 546 U.S. 356 (2006) (Does the Bankruptcy Clause of the U.S. Constitution (Article I Section 8), waive the states’ sovereign immunity?)]
Arguing on behalf of N.C., RYAN PARK added his thoughts:
JUSTICE ALITO: Mr. Park, can I take you back to the interesting suggestion that perhaps Congress could have justified what it did in this act by saying that we predict that a high percentage of copyright infringements are intentional and, therefore, violate due process. If we were to accept that, is there any reason why the same reasoning would not apply in patent litigation?
MR. PARK: No, I don’t believe there is any — any distinction there. [DC: note, this is wrong since patent law does not have a copying requirement.]
Due Process and Takings are not expressly raised in this case are interesting. Even without CRCA, a copyright holder may be able to bring a Federal Due Process or Takings case against a state who infringes the copyright. A major difference here is that copyright damage and injunction statutes go far beyond what is required for a due process violation or taking. Mr. Park explained for the State how the copyright-owner friendly damage regime is one reason to protect sovereign immunity (and taxpayer money).
MR. PARK: My friend has failed to identify any historical evidence that anyone at the founding remotely contemplated that the intellectual property clause would allow for damages lawsuits against states. . . . Congress could not commandeer state legislatures and force them to pass copyright protective laws, nor could they, under separation of powers principles, vest judicial review of copyright claims in the Senate Judiciary Committee. And, likewise, state sovereign immunity limits Congress’s authority to expose state treasuries to the Copyright Act’s exorbitant financial remedies. . . . And liability under the Act is expansive. It’s vastly greater than anything required by the Due Process Clause. It includes statutory damages of up to $150,000 per infringement, even if the plaintiff cannot prove she suffered any actual harm. . . .
JUSTICE BREYER: [For N.C. to win] we’ve got to decide how copyright, copying, and the due process clause fit together, which, to my knowledge, this Court hasn’t really gone into. And it sounds like a pretty good mare’s nest.
From the copyright holder’s perspective, the damage award is inherent to the copyright clause:
MR. SHAFFER: Clearly the framers’ contemplation is these are exclusive rights that anyone who may infringe has to pay for.
JUSTICE SOTOMAYOR: — the latter part you’re assuming. It says securing the copyright, but it doesn’t say making sure that the copyright owners are paid.
MR. SHAFFER: To promote progress. To promote progress, Justice Sotomayor. It is a preamble that is not echoed anywhere else in Article I.
JUSTICE SOTOMAYOR: Some would say that injunctive relief promotes progress.
MR. SHAFFER: James Madison’s conception reflected in the text of what the monopoly would achieve is that the authors and inventors would get paid for their inventions. They would get paid for their creations. And as the Court, as I indicated, back in 1888 recognized, it is antithetical to that to say that government of any kind, certainly the federal government, can infringe those exclusive rights that — that Congress is to be securing.
Justices Kavanaugh and Breyer finally focused on potential realistic outcomes of the case — rampant state infringement?
JUSTICE KAVANAUGH: Justice Breyer’s point is that it could be rampant, states ripping off copyright holders. And how can that be squared with the exclusive right, if states can do this, which presumably a ruling in [N.C’s] favor will do nothing but encourage them to do?
I’m looking for a decision in the case in early 2020.