Two Years After Allen, SCOTUS Poised to Revisit Copyright Infringement by State Entities

Cedar Point Nursery opens up a pathway toward asserting infringement liability against state actors through a constitutional avenue for which the Supreme Court has shown some sympathy in recent years, at least in terms of enforcing intellectual property rights.”

copyright infringement- February 21, Houston, Texas-based professional photographer Jim Olive filed a reply brief with the U.S. Supreme Court in defense of its petition for writ of certiorari asking the nation’s highest court to grant an appeal in Olive’s copyright infringement suit against the University of Houston System. This case is one of two separate suits seeking to hold Texas public universities accountable for copyright infringement; while sovereign immunity defenses have staved off liability thus far, a recent Takings Clause decision by the Supreme Court has created a path forward for these and other IP owners looking to hold state entities accountable for their IP infringements.

Per Se Takings Analysis in Cedar Point Nursery Should Compel GVR in Jim Olive Photography

Olive’s copyright claims against the University of Houston, outlined in his petition, allege that school employees downloaded a picture he had captured of the Houston skyline, which Olive took using special photography equipment while suspended from a helicopter rented at Olive’s own expense, and registered with the U.S. Copyright Office in 2005. Those employees then removed all copyright information from the photo and used it online to promote the university’s business college. After filing suit in Texas state courts, Olive’s case worked its way up to the Texas Supreme Court which held that, while copyright and intellectual property is entitled to protection under the Fifth Amendment’s Takings Clause, the intangible nature of those properties meant that the property wasn’t physically occupied and therefore wasn’t subject to an analysis of whether the university’s infringement constituted a per se taking.

The reply brief recently filed by Jim Olive reiterates the petition for writ’s arguments that it would be appropriate for the Court to grant the petition, vacate the Texas Supreme Court’s decision and remand the case for further consideration under Cedar Point Nursery v. Hassid (2021). Handed down by the Court just five days after the Texas Supreme Court dismissed Olive’s copyright case, Cedar Point Nursery held that a California statute giving labor organizations a right to access the property of agricultural employers to solicit union membership constituted a per se physical taking.

While the labor organizations did not take physical control of the premises themselves, the Court found a per se physical taking by the state in passing a law that appropriated the employers’ right to exclude, “a fundamental element of the property right.” Olive’s Supreme Court briefs argue that a grant-vacate-remand (GVR) order by the court for reconsideration in light of Cedar Point Nursery should render the appropriate outcome, as Olive’s case in Texas courts was premised on the University of Houston’s infringement liability for appropriating Olive’s own right to exclude others from using his copyrighted property. Briefing in Jim Olive’s petition for writ has been distributed to the Supreme Court in advance of the Court’s March 18 conference.

Author Michael Bynum Fights Texas A&M’s Sovereign Immunity Defense to Copyright Infringement

At the same time that Jim Olive’s case has been working its way up to the nation’s highest court, another copyright owner has been pursuing claims of infringement against Texas A&M University. On February 14, the U.S. Court of Appeals for the Fifth Circuit issued the latest ruling in the copyright case brought by author Michael Bynum against Texas A&M over its unauthorized republication of an excerpt of Bynum’s biography of E. King Gill, the Texas A&M student who in 1922 inspired the university’s 12th Man tradition by suiting up for the football squad when it ran low on reserve players. The Fifth Circuit denied a petition for rehearing en banc filed by Bynum, affirming a previous ruling that Texas A&M’s sovereign immunity as a state entity barred Bynum’s takings claims under both the U.S. Constitution and the Texas State Constitution.

These copyright claims against state universities in Texas are taking place under the specter of the Supreme Court’s 2020 decision in Allen v. Cooper. In that case, the Court ruled that Congress did not have the authority to abrogate sovereign immunity in passing the Copyright Remedy Clarification Act (CRCA) of 1990, which was passed so that state entities could stand liable to claims of copyright infringement. The ruling in Allen was compelled by the Court’s earlier decision in Florida Prepaid Post-Secondary Education Expense Board v. College Savings Bank (1999), in which the Court held that Congressional passage of the Patent and Plant Variety Protection Remedy Clarification Act of 1992 was likewise not a valid abrogation of state sovereign immunity for facing patent infringement liability. In Allen, the Court found that Florida Prepaid foreclosed any argument that the CRCA passed constitutional muster and that neither Article I’s Intellectual Property Clause nor the Due Process Clause of the Fourteenth Amendment authorized Congress to abrogate state sovereign immunity.

About one year after the Supreme Court’s Allen ruling, the Regulatory Transparency Project of the Federalist Society published a white paper co-authored by several leading IP policy advocates, which argued that Allen and sovereign immunity defenses to infringement have seriously jeopardized the interests of copyright owners who face numerous infringements by state actors. In Bynum’s case, for example, it is alleged that Texas A&M distributed the excerpt of Bynum’s biography on Gill to more than 350,000 members of the school’s community. And then last August, the U.S. Patent and Trademark Office and the U.S. Copyright Office issued reports on the extent of patent, trademark and copyright infringement conducted by state actors. Relevant to the Bynum and Olive cases, the Copyright Office found evidence showing that the infringement of copyright by states “constitutes a legitimate concern for copyright owners.”

Could the Supreme Court Be Sympathetic to Takings Claims Against State Infringers?

However, what Cedar Point Nursery opens up for copyright owners is a pathway toward asserting infringement liability against state actors through a constitutional avenue for which the Supreme Court has shown some sympathy in recent years, at least in terms of enforcing intellectual property rights. For example, while Oil States Energy Services v. Greene’s Energy Group (2018) analogized patents as public rights instead of private property for purposes of determining whether a jury trial was required by the Seventh Amendment in order to deprive patent owners of patent validity, Associate Justice Clarence Thomas’ opinion in the case noted that the ruling “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.” If the appropriation of a copyright owner’s right to exclude constitutes a per se taking without obtaining physical control of the property, as was the case with the labor unions’ right to access under California law in Cedar Point Nursery, the abrogation of state sovereign immunity could be established without the need for Congressional action.

All eyes will be on the Supreme Court as it considers whether or not to issue a GVR order in Jim Olive Photography, and that decision will have obvious ramifications for similarly situated copyright owners like Bynum. For his part, Bynum has had some success in pursuing infringement liability claims against an associate director of media relations working with Texas A&M’s Athletics Department. This January, the Fifth Circuit dismissed an appeal filed by Brad Marquardt, who is alleged to have directed the retyping of Bynum’s biography for distribution without any reference to Bynum. Although Marquardt pursued a qualified immunity defense against Bynum’s claims, the Fifth Circuit affirmed the district court’s denial of summary judgment on qualified immunity.

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2 comments so far.

  • [Avatar for Alexander]
    April 9, 2022 10:16 am

    Property is property and the state should never have a right to use others work without the owners blessing, if used without permission then the artist should be fairly compensated, and the use if not licensed for continued use that use should end. In fact IP is stronger property than land is as truth be told you have to pay property tax so you never actually own it. But IP is fully owned but the artist or developer or assigned owner and they should have the last and final say in who can use it for any purpose. State agencies taking others property for their gain is just another form of corruption that is apparently till today legalized. Taking away a States right to steal would go a long way to start reigning in state corruption as a whole. After all it is people who approve the theft the state has no ability to steal on its own and if those who work for the state just do not care about stealing from artists who else are they stealing from? People need to stop treating IP so disparately from transient physical property such as land. It may be slow to do so but all of the land that exists today will be changed by geological processes moved and destroyed as the same with all physical property. IP on the other hand can transcend time and exist in its original form as long as we exist and a owner of such IP is limited artificially by the copyright act and because of this owners of IP should be able to have a full and strong rights even if the states do not like not being able to steal, they should not have that right, and should have had never that right. It’s not as if they cannot afford to pay and I bet if tax payers were made aware that states had this absurd power to steal without consequence they might a problem with that. It’s hard enough for artists to survive already without having the people who are supposed to protect you stealing from you blatantly and without consequence. States should have never be given the right to steal from anyone.

  • [Avatar for Anon]
    March 2, 2022 03:25 pm

    I struggle to see how one applies Cedar Point (actual egress over actual property) with intellectual property.

    I am just not seeing the (land) pathway in the non-land application.