Intellectual Property and the Historic Kinship Between Patents and Copyrights

by Dennis Crouch

In a recently published article, Homayoon Rafatijo and I take-on sovereign immunity in copyright cases.  We argue that the Supreme Court got it wrong in Allen v. Cooper. Our abstract:

The FBI Anti-Piracy Warning provides that “unauthorized reproduction or distribution of a copyrighted work is illegal.” In Allen v. Cooper, the Supreme Court effectively qualified this warning by adding an exception in favor of “sovereign” pirates. In allowing the states to usurp citizens’ intellectual property rights, the justices of the Allen Court prioritized either a dogmatic form of stare decisis or the New Federalist ideology over the Constitution and its structure and history. The Allen Court largely based its decision upon a perceived historic kinship between patents and copyrights, concluding that if not patent, then not copyright. This article walks through the historical record, especially in the period following the Federal Convention, and reports key differences between the patent and copyright systems that that tilt toward a conclusion that the States agreed “to be subordinate to the government of the United States” in the copyright space. In the end, Allen creates serious practical problems for copyright holders. The decision emboldens copyright infringement by state actors by cutting-off the possibility of any recovery of damages for the infringement.

Read it here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4163206.

63 thoughts on “Intellectual Property and the Historic Kinship Between Patents and Copyrights

  1. 8

    The several States waived their jurisdiction over patent and copyright matters. There is no sovereign jurisdiction on these matters for States, they lack standing to assert b/c they forfeited it willingly upon execution of the old famous compact.
    To come back and assert sovereign immunity on these matters in an action styled by a State as a plaintiff asserting patent or copyright anything, is frivolous. The res of the matter, was moved outside of the States, to that “less than 10-mile square” zone. 🙂

    1. 8.1

      You have to look at the location of the res, b/c jurisdiction in rem depends on its location. Bring it up. Somebody will soon, bring up the res, in a patent case. Watch and see, bc it controls sometimes. !! Harvard Law Review, 1910 or so I think it was stated clearly.

      1. 8.1.1

        No one is following your “res” musings Chrissy.

        1. 8.1.1.1

          I love it that you’re the only one who seems to care, about nonsense I drivel. Tells everybody alllll about you. hahahahhaha

          1. 8.1.1.1.1

            What do you think it tells about you, Chrissy?

            My pointing out inanities is merely that: pointing out inanities.

            YOU being inane is also that: you being inane.

            Pssst: I have the far better position.

            1. 8.1.1.1.1.1

              haha, you’re a Blabbermouth, ever body knows ! So what ? No Man of any saltworthinesss takes you serioursly Chrissybitchwannabeewhateverthefkmotivatesyourlameass
              LOL hahahahah, end of story, youre a blabbermouth full of BS and la la la, keep havin yer fun, cuz, reality is, you’re WEAK

              1. 8.1.1.1.1.1.1

                Well that was rather odd of you.

                Are you feeling better now? Are you ready for your cookie?

        2. 8.1.1.2

          I lay honeyshit out for IP maggots like you, and all scientists recognize you for what you are !!!!!!! easy revelation !!!

          1. 8.1.1.2.1

            You confuse you BEING “honeysh 1 t” with my merely commenting upon your state.

            You might want to realize that before you get all happy and start patting yourself on the back.

        3. 8.1.1.3

          If a man dont put his name to words, either the words are no good, or the Man is no good. Mencken. hahahahhahahahs Blabbermouth You are for sure. Like Jackie Gleason said “BLABBERMOUTH” !!!!!! That is YOU !!!!!!

          1. 8.1.1.3.1

            You calling someone responding to to your blabbering that which you MUST be far worse — just not a great look for you, Chrissy.

            1. 8.1.1.3.1.1

              I like it , that you like me so much. It makes me feel “special” since, nobody else cares to write back to me as you have. Luckily, nobody gives a frankshit about it. hahaha As Don Rickles said, you have a good show but , too bad nobody watches it. hahsajashsh yo’re such a lammmeeee efkkrrrrr POS in the art of BLabbermouthy. Congratulatkons !!!!!!!! Love ya forever

              1. 8.1.1.3.1.1.1

                Maybe one too many cookies for you…

        4. 8.1.1.4

          Oh, well, its an ancient concept and lately I see ppl with microscopes looking at bark. The concept of the res is ancient and for good reasons. The average “US Citizen” who pays a federal income tax and abides by all rules, codes, et cet., does so b/c there’s a res somewhere, from which they have an ability to potentially receive a benefit. A res can be moved, obviously, by contract. So, who would be surprised that the location of the res in a copyright case would be a consideration ? Take off your microscope maybe. Just b/c none of the bigwigs ever mention the res, doesn’t discount its relevance, it just means ppl aren’t on mark. Go look in fed court cases of those dismissed as frivilous – in many you can see the lawyers hadn’t even considered it. What is it, like rule 3 or something where one can’t file a case without some expectation, & cet. or the like. Those frivilous cases would have never been filed many perhaps, had the practitioner considered this…. very important concept… of the res.
          You can have fun with it, it applies to ALL IP !!!!!!! Be well

          1. 8.1.1.4.1

            Oh well,…

            I am wondering that in your (semi?) retirement, you are left musing over your proximity (but not passing a bar exam) to law, and if you are spending too much time listening to Ken Nordine….

            🙂

  2. 7

    Here’s an interesting question: Can public school teachers photocopy entire textbooks, or make electronic copies of them, and give them directly to students? In many States, the teachers are considered State employees (i.e., North Carolina) where in other States, they are employed by the local political subdivision (e.g., city or county in (for example) Michigan). Educating and providing educational material to students is directly in the job description of a teacher, so it would be hard to argue that the teacher was acting outside the scope of their job description.

    1. 7.1

      Dvan,

      As I pointed out directly when this case first came out, your point is one that explicitly carries.

      Not only for such copying either — but think bootlegging all software.

      Being a government actor IS the same as being a Pirate.

    2. 7.2

      New thread picking up on a potential limit to this ‘piracy’….

  3. 6

    link to youtube.com

    OT, but this was raised about common carriers and social media.

  4. 5

    Wow, congrats to the writers of Patently-O for calling out the Koch funded Federalist Society for their legal fiction writing. Kudos to Prof. Crouch for his courage calling out the political activism of the Robert’s Court.

    I don’t know how the Supreme Court can ignore the legislative history of the Constitution especially the failures of the Articles of Confederation. The first government of the US failed because there was not enough central authority so they granted limited explicitly limited authorities to the Federal government including copyrights. The States surrendered their sovereign powers over copyright when they signed on to joining the US Constitution’s new government. Same thing with the filibuster, i.e. the filibuster caused the failure of the first US government and the filibuster is inherently unconstitutional based on the legislative history of the US Constitution. (Hey Justice Roberts, did you ever take US History in grade school or do we need to send you back to 7th grade civics class like Beavis and Butt Head?)

    1. 5.1

      Koch funded federalist society….

      Put the Kool-Aid down.

      1. 5.1.1

        See “Democracy in Chains” by Prof. Nancy MacLean for details of Koch involvement in funding various entities like the Federalists. Sorry, I didn’t know footnotes were required.

        link to amazon.com

        1. 5.1.1.1

          The Left is even more in chains.

          My position on capture by Dark Money has always been the same — that you think this but one sided is plain error.

          Now maybe if you want to focus on a substantive point, we can engage on some merits, eh?

          1. 5.1.1.1.1

            The difference is that the political right’s dark money funded the attempted violent overthrow of the US government on January 6th, 2021. Trump humping supporters do not seem amicable to discussing substantive points of law. Unfortunately, I worked for the US government and I am aware of a lot of information on this issue that I cannot discuss.

            1. 5.1.1.1.1.1

              Well, Jr., I will give you partial credit for, “Unfortunately, I worked for the US government and I am aware of a lot of information on this issue that I cannot discuss.” — as I have seen things (for example, things related to Big Pharma) that I cannot discuss.

              That being said though, I have my doubts (hence only a partial credit for you). You do not indicate that you are an attorney, and other than that type of duty, your “cannot discuss” loses a bit of impact.

              Further, given the tenor of your posts, you are NOT objective and your “working with” appears to show a one-sided blindness that makes you lose credibility. I would dare say that you may even BE a part of that Deep State problem that has infected the government (and is just as pernicious — if not more so — of an “overthrow” of the government).

              For example, your “the political right’s dark money funded the attempted violent overthrow of the US government on January 6th, 2021.” has had ZERO support in any evidence put into the public view; and this lack of support indicates that you are bloviating – on many levels.

              First, the only death that day was that of a demonstrator (an egregiously violent action BY the government).

              Second, the level of “violence” associated with ANY charges against demonstrators has been de minimus – and certainly not to any level of a broad scale actual coup. You are merely peddling the Liberal Left mantra, and quite frankly, one that is just not believable. Maybe compare the treatment of Ray Epps and Chewbacca man (if the administration and the “D” Party do not want to feed conspiracy theories, then I suggest that they stop feeding conspiracy theories).

              Lastly, your, “Trump hum p1ng supporters do not seem amicable to discussing substantive points of law.” is inapposite as a reply to me, as I have made it abundantly clear that I have never voted for Trump, I am a “D,” and I have railed against the Dark Money from both sides.

            2. 5.1.1.1.1.2

              In case you circle back Jr…

              And on (perfect) queue:

              Those in government… sedition from within…

              Quote at 36:56 mark

              link to open.spotify.com

            3. 5.1.1.1.1.3

              An attempt to overthrow the government? Without guns?

              Soros has funded DAs that are destroying our cities. Look at Chicago, Philly, LA.

              And, let’s not pretend that Wall Street gives its money to the republicans.

              And what about unions? Including those public sector ones, like the federal government.

              I am sure you have a lot of information you cannot discuss. Just like Adam Schiff did for how many years with the Russian hoax?

              But, once you admit you worked in the federal government, you reveal your hand. Career federal employees think they are in control of the government, NOT the elected officials. And therein lies the problem.

              1. 5.1.1.1.1.3.1

                [L]et’s not pretend that Wall Street gives its money to the republicans.

                In the 2020 cycle, “the financial sector reported making $1,964,240,861 in contributions to federal candidates for office… Of the $982,775,706 in party-coded contributions…, 47% went to Republicans and 53% went to Democrats.” In other words, approximately an even split between the two parties.

                1. Do you have a citation? Thanks.

                  A CNBC article from October 28, 2020 reported that Wall Street gave Biden 74 million in 2020. They gave Trump 18 million. They gave Hillary 84 million in 2016.

                  Maybe we are both right. Maybe they made it up with down-ballot candidates.

                2. Regarding the current election cycle (2022), the financial services industry has given ~$81.5K to democratic funds, and ~$62.5K to republican funds. That amounts to a 55/45 split, so hardly ignoring the republicans.

                  The financial services industry also gave ~$144K (slightly more than the other two categories put together) to “PACS,” but regrettably there is no partisan breakdown given for those PACS. In other words, it is possible that the 55/45 split would break down in some other manner if we had more data. One way or the other, however, it is clear that Wall Street is giving plenty of money to the GOP (although, slightly more to the democrats).

                3. Thanks. Your link says the numbers include lobbying.

                  But, I note that it claims that the expenditures were on the senate.

                  Also, they seem to have no problem with union contributions, or individuals like I mentioned.

                4. Your link says the numbers include lobbying.

                  Correct. One of the principle channels by which Wall Street funnels money to politicians is through registered lobbyists, so the total does include lobbyist money.

                  I note that… the expenditures were on the senate.

                  Both the figures that I cited for the 2020 and the 2022 cycles include all federal elections (president, house, and senate). In other words, yes, the senate was included, but, no, the numbers are not limited to senate expenditure.

                  [T]hey seem to have no problem with union contributions, or individuals like I mentioned.

                  Sorry, not quite following. Who seems to have no problem with union and individual contributions? Both parties take money from unions, although the bulk of union contributions (not surprisingly) go to democrats. Please note, however, that in the 2022 cycle, public sector unions gave ~$37.8 million total (to Rs, Ds, & PACs combined). By contrast, “Wall Street” (i.e., the securities & investment industry) gave ~$62.5 million to republicans alone. In other words, Wall Street contributions to republicans dwarf the total contributions of public sector unions to all politicians. Unions and Wall Street just are not playing in the same league.

                  Both parties also take money from individuals. In the 2022 cycle, retired individuals have given ~$415 million to republicans, and ~$240 million to democrats. Retired individuals dwarf even Wall Street in their power for funding elections. Glad to know that at least some force out there can outcompete Wall Street. 🙂

                5. You are glad that someone can out do Wall Street….

                  Says more than you think it does there, Greg.

                  And it’s not good.

              2. 5.1.1.1.1.3.2

                Had a post in response to Greg’s “choice” of data, but it snagged somewhere (prior to posting here, so it’s not a “caught in filter” thing.

                Bottom line: Greg’s source is NOT objective and entirely lack even a person that claim a politically Central viewpoint, much less having any sense of balance with a viewpoint from the Right.

                And this, even as I agree with most all of the stated aims on one of their website pages!

    2. 5.2

      Here is the video exemplifying Justice Roberts and Gorsuch being sent back to school:

      link to youtu.be

      1. 5.2.1

        Hilarious / except Biden has dibs on one of those characters already:

        link to youtu.be

      2. 5.2.2

        You should be championing Roberts. He signed off on the FISA Court judges that signed off on the warrants to spy on people connected with Trump.

        And, he saved Obamacare by re-writing the statute instead of sending it back like the Court should do.

        Gorsuch did the same with the meaning of the word “sex.” They really have given some major unconstitutional victories to the liberal side.

        1. 5.2.2.1

          ahhh, so much admiralty law has crept so far, it is difficult to find anyplace where one cannot smell the sea.

  5. 4

    “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”
    JAMES MADISON

    1. 4.1

      Read my FB post. Imagine even the Constitution says it’s so. Why they claim I don’t also have RICO is just plain holding back the inevitable when I get all my Days in Court.

  6. 3

    The SCOTUS so-called conservatives don’t care about precedent so no worries.

    1. 3.1

      You once again belie your chosen moniker in somehow thinking only one side is playing the political game.

      To wit, your phrase is equally exchangeable, one faction for the other to also write (with bold applying to both sides):

      The SCOTUS so-called Liberals don’t care about precedent that they don’t like so no worries.

      You do realize that the Liberals themselves broke precedent to get to a Liberal state, eh?

      To tie this back into patent law (this being a patent blog), I was the very first to decry the Court writing how they merely wanted to — even as Malcolm celebrated. I very much pointed out that Malcolm would rue the day when the SAME Means were applied to different Ends – Ends he did not like.

  7. 2

    SCOTUS and the CAFC pull legal rabbits out of their respective hats.

    As they have always done.

    As they will always do.

    1. 2.1

      I am not sure it is their hats that they are pulling their fantastic legal theories out of, but probably another part of their anatomy distally located. However, I concur with my esteemed colleagues intelligent opinion.

      1. 2.1.1

        “Intelligent because you agree” is NO sign of intelligence.

  8. 1

    There seems to be considerable hypocrisy among some Sup. Ct. justices who normally indicate strong support for state rights versus Federal except when what a state does something they strongly don’t like. But I doubt if state copyright infringement is one of those?

    1. 1.1

      Can you provide some examples of this considerable hypocrisy? I don’t see it. The issues is that powers of Congress are enumerated and anything else is left to the people or the States. On the other hand, if a state violates an enumerated right (e.g., banning guns), then the state loses.

      1. 1.1.1

        It’s not that simple, especially after the 14th Amendment’s limitations on state conduct, and the many Sup. Ct. interpretations of the Federal “enumerated rights” [which includes copyrights and patents], and restrictions on states accepted by their acceptances of federal funds.

        1. 1.1.1.1

          Ok, but it would still be easier to follow your point if you cited some specific examples, as Litig8tor requested.

          1. 1.1.1.1.1

            Besides that provided below, there was, for example, the expressed reaction of some conservative justices to the Oregon State “death with dignity” law they didn’t like [now enacted in 11 states], state gay marriage laws, CA state auto emission laws, etc. I’m sure there are other examples if one wants to look. But as noted at 1, I do not think that free range state copyright infringement [in addition to free patent infringement] is not very likely to become any Justices hot button issue.

            1. 1.1.1.1.1.1

              > I do not think that free range state copyright infringement [in addition to free patent infringement] is not very likely to become any Justices hot button issue.

              SCOTUS did imply that Congress could ban wide-spread (aka “free range”??) state copyright infringement… but they’d have to actually do some work first.

              “But as in Florida Prepaid, the legislative record contains thin evidence of infringement. Because this record cannot support Congress’s choice to strip the States of their sovereign immunity in all copyright infringement cases, the CRCA fails the ‘congruence and proportionality’ test.”

      2. 1.1.2

        “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

        Why does this prevent NY from having gun regulations of the type just overturned? Aren’t they the “free State” and shouldn’t NY get to say what its “well regulated Militia” gets to do with guns?

        The SC uses textualism when it suits them and ignores it when it doesn’t.

        I can guarantee the founding fathers did not think of weapons that can mow down a classroom full of kids in minutes, with bullets designed to cause extreme damage. That’s not the “well regulated Militia” they anticipated.

        It’s like stare decisis: lately, if they haven’t applied a case in a while, they just ignore it, thereby ignoring stare decisis.

        1. 1.1.2.1

          BobM translation (for those who enjoy comments):
          “Wah”

          (Repeated due to prior catching in a filter)

        2. 1.1.2.2

          By using the word MILITIA the intent to cover military weapons is clear. Also, read the Federalist Papers. Nothing in the 2A allows you to “mow down” innocent people. But it does allow you to keep and bear arms.

        3. 1.1.2.3

          Since SCOTUS now likes justify its perfidious opinions based on the way things were when the U.S. Constitution was ratified (or sometimes even before then when dinosaurs, their brethren, still walked the Earth) consider the state of technology when the U.S. Constitution was ratified.

          link to washingtonpost.com
          ———
          The typical firearms of the day were muskets and flintlock pistols. They could hold a single round at a time, and a skilled shooter could hope to get off three or possibly four rounds in a minute of firing. By all accounts they were not particularly accurate either.
          ——–

          There were a few repeating flintlocks but if someone gives you one, you might think twice about firing it.

          link to en.wikipedia.org
          ———
          The mechanism at the heart of the Cookson repeater dates from 1650 and was originally known in Europe as the Lorenzoni System, named for Italian gunsmith Michele Lorenzoni of Florence.[2] Long arms utilizing this system were produced in other European nations and in the United States until about 1849. The Cookson rifle dates from 1750 and features a two-chamber horizontally mounted rotating drum. Loading was accomplished by lowering a lever which was mounted on the left side of the rifle. This caused the chambers to line up with two magazines contained within the buttstock and allowed one .55 caliber lead ball and a 60-grain powder charge to fall into their respective chambers. When the lever was returned to its original position, the ball dropped into the chamber, and the powder charge lined up behind it. At the same time, the hammer was cocked, the pan was primed, and the frizzen was lowered. After firing the rifle, the process could be repeated until the two magazines, with their seven-shot capacities, were empty. While most of these guns used gravity to feed the balls into the drum, one specimen, from the Paris museum, used a spring to force them in.[3] Although other breech loading rifles were introduced in later years, the Cookson-type long arms were unique in their ability to fire multiple shots without reloading. Until the Nineteenth century, the only mechanism that could fire faster was the Kalthoff repeater, which was more delicate and expensive.

          However, unlike the Kalthoff, the Cookson system had a dangerous flaw in that flame could leak from the firing chamber into the powder magazine, making the gun explode at high risk to the user. Many of the surviving specimens have shattered stocks from such accidents.
          ——–

          Not surprisingly, they were not widely used.

          The first integrated cartridge (with its own percussion cap) was not invented until 1808, so it did not exist when the U.S. Constitution was ratified.
          link to en.wikipedia.org

          Before then the things called cartridges contained only powder and the shot. You opened the cartridge (usually by biting the end off if you still had teeth) and poured the powder and shot into the gun’s barrel. link to en.wikipedia.org

          That way you didn’t have to measure the powder. The cartridges were made of paper so you still had to be careful to keep your powder dry.

          The Colt revolver did not exist when the U.S. Constitution was ratified.

          link to en.wikipedia.org
          —–
          Colt began work on the revolver in 1871, and submitted a sample to the U.S. Army in late 1872.
          —–

          So the 2nd Amendment does not cover firearms that use a modern cartridge.

          Maybe you could use a Petard.

          The Petard was a primitive bomb used in the Middle Ages to breach the walls or gates of castles.

          The fuses were unreliable and sometimes burned too fast and the Petardier did not get away in time before the petard went off. This gave rise to Shakespeare’s phrase, “hoist with his own petard” meaning lifted (or blown up) with his own bomb.

          The modern hand grenade was not invented until the early 1900s. Isn’t that why the use of hand grenades is not protected by the 2nd Amendment?

          The use of modern firearms is certainly more efficient than pushing people out of windows (preferably higher than the first floor). Or you could use a cliff. People were doing that long before the U.S. Constitution was ratified.

          Speaking of cliffs, how were so many Americans turned into lemmings?

          1. 1.1.2.3.1

            “ Speaking of cliffs, how were so many Americans turned into lemmings?”

            I part, it’s because of cowards like Dennis and Jason who chose to carry water and provide a platform for fascist scumbags.

            1. 1.1.2.3.1.1

              The worst lemmings though at those of the Authoritarian Left.

              Over the last two hundred years, the Authoritarian Left has left FAR MORE human devastation than the Authoritarian Right.

              This is not an item up for debate.

            2. 1.1.2.3.1.2

              BRUCE OR JON
              YOU LOSE. NOW TO GET EVEN TELL ME WHAT THEY WON’T. IMAGINE A LAWYER TOLD ME THE D.A. DOESN’T HAVE TO RRPORT A CRIME IF HE DOESN’T WANT TO. I SUPPOSE WHEN I ASKED THE D A’S IT WAS OLD NEWS BY THEN. SO INSTEAD ALL OF LAW ENFORCEMENT THAT I ASKED FOR HELP THEY DID ALL THEY COULD TO ANYTHING TO STOP ME.
              THIS IS WHY THE 1/6 NEEDS TO SEE MY EVIDENCE, AND HEAR EVERYTHING I CLUDING THE ANCESTRY FRAUD.

          2. 1.1.2.3.2

            You do realize (in your own Lemming march), that “state of technology” is itself not at point in the 2A context, right?

          3. 1.1.2.3.3

            This argument is ludicrous. Does the “press” only cover printing presses? Not the internet or tv?

            The argument is that what is not set forth in the Constitution for the feds is reserved for the states and the people. That is the most important aspect in all this. But, when not all the states fall in line, people want the federal government to force them to do so.

            That’s not how it is supposed to work. Amendments to the Constitution are difficult for a reason.

        4. 1.1.2.4

          It does not say the “right of the Militia to keep and bear arms shall not be infringed.” It says the right of the people.

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