I have written extensively about state sovereign immunity (a.k.a.,11th Amendment immunity) as it relates to copyright owners’ inability to hold states and state actors liable for recklessly and knowingly infringing protected works. State immunity for violations of federal statutes against persons is a maddening subject—rife with judicial and historical contradictions and implications that reach far beyond intellectual property. Among the many infuriating aspects of the immunity story is that, in theory, persons injured by state violations of their federal rights can pursue “other remedies” when they are barred from suit in federal court. In theory. But not in Texas.
Texas does not equivocate: it rejects any remedy for victims whose intellectual property is blatantly stolen—which even Texas cannot deny happened here.
That statement comes from sports author Mike Bynum’s petition for certiorari to the Supreme Court in response to Texas’s and the Fifth Circuit’s hard-to-follow rationales for denying Bynum any remedy whatsoever for the undisputed theft of his intellectual property. Specifically, Bynum was working on a book about the legendary “Dixie Classic” football game of 1922, during which the “12th Man,” E. King Gill who, though not a member of the team, suited up ready to play because so many members of the Aggie squad had been injured that day.
In my post published at this time last year, I detailed the facts of Bynum’s complaint and the Fifth Circuit’s ruling. In summary, parties at the university’s athletic department copied and distributed Bynum’s unpublished manuscript, removing his name and copyright notice in the process. The material was ultimately distributed to an estimated 350,000 readers—the same audience that would have been interested in buying the book.
With a built-in fanbase and potential long tail interest in the work, the financial damage to Bynum is arguably substantial—but at any valuation, it was surely total. While most piracies cause at least some harm to the copyright owner, TAMU’s wholesale destruction of Bynum’s first publication opportunity effectively killed all financial interest in the author’s work-in-progress.
If that sounds like an illegal “taking” by the state, that’s what Bynum and others think, too—especially when they are barred by sovereign immunity from enforcing their statutory copyright rights. In fact, takings, unfair competition, torts, etc. have long been speculated as alternative remedies in the debate about sovereign immunity. Even the Supreme Court, in affirming that Congress’s Article I powers were insufficient on their own to abrogate state immunity, argued that the possibility of state remedies had “barely been considered,” by Congress. And, as noted in that post last year, the Court, in filmmaker Rick Allen’s case against North Carolina (Allen v. Cooper) indicated that a copyright owner may sue a state entity in federal court “if he can demonstrate a constitutional violation and show that there is no remedy available in state court—which together would rise to a violation of due process.”
But as Bynum’s petition describes, the Fifth Circuit decided that 1) copyright infringement is never a taking because copyright rights are not property; 2) that his due process claim is barred on the grounds that the state could hypothetically provide an avenue for state remedy at some point in the future; and 3) that takings claims are altogether barred by sovereign immunity despite the fact that the Supreme Court has held that the Takings clause requires some compensatory remedy in federal court.
The case law underlying these matters is expansive and, as stated above, tangled in contradictory opinions dating back to the ratification of the Constitution. Every time I return to the subject, I feel like I’m starting over, and I will do readers the favor of not attempting to unravel every nuance in a single post. I suspect the Court will grant cert here because of the constitutional questions presented; because circuit splits are argued; and because of the states’ rights implications.
But one aspect I hope the Court will emphasize in Bynum’s case is the thoroughness with which TAMU took the whole value of his property interest in the manuscript—and even went so far as to remove evidence of his authorship and copyright claim, which is reckless as well as illegal. As the petition cites, the Court in Allen v. Cooper held that “copyrights ‘are a form of property” under the Fourteenth Amendment and that an ‘intentional, or at least reckless’ copyright violation may violate due process rights.”
The holistic nature of the state theft in Bynum may be instructive to the extent that photographer Jim Olive’s case against the University of Houston is otherwise held to inform these considerations. Olive sued the University of Houston for infringement of his aerial photograph, but the Texas Supreme Court held that the complaint was not ripe for a per se Takings claim on the basis that the university had not fully deprived the photographer of his right to exploit his copyright rights in the image in other contexts.
Even if that theory has merit as a Takings consideration (because it is no way to look at copyright), the Supreme Court in Bynum should carefully consider the contrast of that reasoning against the utter destruction to Bynum’s property interest in his book. “TAMU’s copyright violation was flagrant, damaging, and largely undisputed. Texas’s legal position—and the Fifth Circuit’s—is that states simply can steal copyrighted material with impunity. As state copyright violations continue to proliferate nationwide, that warrants this Court’s intervention,” the petition argues.
Indeed it does.
 Florida Prepaid v. College Savings (Rehnquist, 1999)
Photo by: Angelstorm