“The petition claims that Texas A&M’s infringement was ‘flagrant, damaging, and largely undisputed’ and that the current ruling in the case suggests that ‘states simply can steal copyrighted material with impunity.'”
Following a denial of rehearing en banc by the U.S. Court of Appeals for the Fifth Circuit in February, publishing company Canada Hockey L.L.C., doing business as Epic Sports, and Michael Bynum, a sportswriter and editor, have now filed a petition for writ of certiorari with the U.S. Supreme Court in their appeal of a copyright case against both Texas A&M University and a pair of school officials. The petition claims the Fifth Circuit’s decision leaves copyright holders “at the mercy of state infringers.”
In their petition, the plaintiffs argue that the Fifth Circuit’s ruling affirming the Southern District of Texas’ dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of Bynum’s manuscript on the nearly 100-year history of the famed “12th Man” tradition at Texas A&M erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment. The Texas ruling followed the U.S. Supreme Court’s March 2020 decision in Allen v. Cooper, which declared that Congress’ abrogation of state sovereign immunity under the Copyright Remedy Clarification Act was unconstitutional.
In affirming the district court’s ruling, the Fifth Circuit panel found that there was no violation of due process under the Fourteenth Amendment, allowing the appellate court to apply the reasoning of the Supreme Court’s 2006 decision in U.S. v. Georgia. In that case, the Court found that private remedies under law against state actors exist only when the state action constitutes a violation of the Fourteenth Amendment.
The specific questions posed by the petition are:
After this Court’s decision in Allen v. Cooper, 140 S. Ct. 994 (2020), damages remedies for copyright infringements by state governments depend on either showing an actual constitutional violation (as well as a statutory one) under United States v. Georgia, 546 U.S. 151 (2006), or—perhaps—asserting a free-standing takings claim under the Fifth and Fourteenth Amendments. The Fifth Circuit’s categorical rejection of both these avenues in this case raises three questions:
Can copyright infringement constitute an actual constitutional violation on a takings theory or, as the Fifth Circuit held, is infringement never a taking?
Is a hypothetical state remedy that state courts have never recognized sufficiently “clear and certain,” Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 587 (1995), to prevent an actual due process violation?
Does state sovereign immunity bar takings claims altogether, notwithstanding this Court’s holding in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), that the Takings Clause mandates a compensatory remedy in federal court?
According to the petition, the Fifth Circuit’s holdings on the key questions in the case “are inconsistent with decisions of this Court and in tension with the positions of other circuits.” The petition continues:
But the essential functions of this Court consist in maintaining not only “the uniformity” but also the “supremacy of federal law.”…. Each of the Fifth Circuit’s holdings in this case weakened federal intellectual property protection for copyrights, and each encouraged states to substitute their own uncertain and potentially self-serving state law remedies for the federal CRCA [Copyright Remedies Clarification Act] when state governments infringe.
Slamming the Window Shut
The petition claims that Texas A&M’s infringement was “flagrant, damaging, and largely undisputed” and that the current ruling in the case suggests that “states simply can steal copyrighted material with impunity.” In U.S. v. Georgia, the Court allowed for a case-by-case abrogation theory in cases where “a plaintiff can reasonably allege that there has been intentional copyright infringement and there are not adequate remedies.” But the petition alleges that the Fifth Circuit’s decision “slammed Georgia’s window and nailed it shut” and that this case presents a perfect vehicle for reopening it.
The petitioner also argues in part that the Fifth Circuit’s holding that copyright infringement can never constitute a Taking because it is a tort violation creates a tension with the Supreme Court’s and other Circuit holdings on the issue. The Court in Allen v. Cooper said that copyrights are a form of property protected by the Fourteenth Amendment and should be protected like real property. The ruling also “creates serious tension with the views of the First, Second, and Ninth Circuits” on this issue, says the petition.
The Fifth Circuit claimed that, although no tort remedies are available under Texas law, “Appellants have a viable takings claim against TAMU for copyright infringement under the Texas Constitution.” However, the petition points out that the appellate court ignored the fact that the state government has “consistently maintained that a takings remedy is not available under Texas law for copyright infringement.” The Fifth Circuit’s position that Jim Olive Photography v. Univ. of Houston left open the door to bring a regulatory Takings claim against the State for infringement is flawed and does not represent a “clear and certain remedy” as required, says the petition.
The petition concluded by noting that a 2021 Copyright Office report found that state infringements have increased “substantially” since Congress enacted the CRCA and that “sovereign immunity itself hampers the development of a more conclusive evidentiary record, as it often prevents claims from being brought or assessed on the merits.” The study concluded that “the evidence indicates that state infringement constitutes a legitimate concern for copyright owners.”
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