Category: Law & Policy

Allen v. Cooper Revisited Part I: State of Play

Ever since the case Allen v. Cooper first appeared on my radar, and especially after the Supreme Court handed down its decision in late March, I have been admittedly a wee bit obsessed with the subject of state sovereign immunity (a.k.a. Eleventh Amendment immunity). What is Eleventh Amendment immunity? In a nutshell, it means you cannot sue a state (including arms of the state, like universities) in federal civil cases. So, if you like tilting at windmills, and mucking about in the dusty attics of American law, as I do, perhaps you will indulge the series of posts I plan to write on this difficult—and what may ultimately prove unresolvable—constitutional challenge to the protection of intellectual property. 

As reported in the post I wrote following the decision in Allen v. Cooper, the majority and concurring opinions, written by Justices Kagan and Breyer respectively, came unusually close to expressing regret that precedent led the Court to the only decision available—affirming that states are free to infringe the copyrights of private citizens and entities with impunity.

Further, the Court all but nudged Congress to have another go at resolving the statutes written in 1990 to intentionally abrogate state immunity in intellectual property suits. “[A] tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice,” writes Justice Kagan for the majority. And in his concurrence, Justice Breyer observed, “Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.” Only Justice Thomas, in his concurring opinion, averred, on separation grounds, that the Court has no business urging Congress to do anything.

In response to the Allen decision, Senators Tillis and Leahy of the Judiciary Committee, on April 28th, sent letters to the U.S. Patent and Trademark Office and the U.S. Copyright Office, stating their concern “about the impact this may have on American creators and innovators.” The letters ask both agencies to “research this issue to determine whether there is sufficient basis for federal legislation abrogating State sovereign immunity….”

Beyond the fact that I personally support the rights of authors and am, therefore, opposed to creative works being freely pirated by state entities, I find the challenge of overcoming Eleventh Amendment immunity an intriguing subject on its own. Perhaps most especially right now, when overlapping, turbulent events in the United States have, in various ways, highlighted the federalist model of the nation.

The concept of state sovereignty, embodied in the Tenth Amendment, though traditionally viewed as a favorite principle of conservatives, has lately garnered considerable attention from a broader swath of the electorate. With a President who likes to claim he has “absolute authority” to do just about anything his thumbs can tweet, we have lately been served a steady diet of legal analyses on the theme of federal versus state law.

So, because the response to Allen reveals a rare moment of synergy, when both the Court and Congress seem to want to prohibit the States from freely infringing intellectual property, understanding why this result was not achieved by three modern laws offers a unique, if frustrating, glimpse into the complex underpinnings of our federal system.

How We Got Here

Article I section 8 of the Constitution lists the plenary powers of Congress, and among these, paragraph 8 (the IP clause) grants the power to enact patent and copyright laws. As articulated in Federalist 43 (Madison), it was anticipated that uniform, federal IP laws would best serve the interests of the new nation; and although there is little record of any controversy about that principle at the founding period, pre-emption of state copyright laws did not occur as a practical reality until the 1976 copyright act.

Meanwhile, an inherent tension was already present with the passage of the first copyright law of 1790 because the jurisdictions for litigation would eventually (i.e. beginning in 1819) be the federal courts. And one aspect of the Constitution that was very controversial at the founding period was the establishment of the federal court system in Article III. Anti-federalists and skeptics of the Plan of the Convention, already anxious about the uncharted boundaries between states’ rights and the new central government, were especially wary that the federal courts might swallow a state’s sovereignty to make and enforce its own laws.

With the Tenth Amendment in the Bill of Rights of 1791, state sovereignty was affirmed as a general principle. But four years later, the South Carolina estate of one Alexander Chisolm filed suit against the State of Georgia, seeking monies owed for materiel provided during the Revolution. When the Supreme Court, in a 4-1 decision, found for Chisolm, it was a big We told you so moment for the aforementioned skeptics of the federal court system. Consequently, the lone dissent in Chisolm v. Georgia, written by Justice James Iredell, served as the predicate for the Eleventh Amendment, passed in 1795. It says:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

More about Justice Iredell—I think he’s an interesting cat—in a subsequent post. But for now, let’s just say that the Eleventh Amendment can be a troublesome little bug in the Constitution, and not only for IP law. If Congress can pass laws under Article I that are only justiciable in federal court, but states are immune from suit in federal court, a natural question any modern plaintiff might ask is whether contemporary justice is being confounded by antiquated precedent. And there’s an extent to which the answer to that appears to be, Yes, it is.

Not only is the historic lineage of sovereign immunity (i.e. English law dating back several centuries) anathema to democracy, but according to scholar John V. Orth, U.S. state immunity is a vague doctrine at best. He writes, “…the search for the original understanding on state sovereign immunity bears this much resemblance to the quest for the Holy Grail: there is enough to be found so that the faithful of whatever persuasion can find their heart’s desire. And … the object of the search may prove equally illusory.”

That quote was cited in the U.S. Copyright Office Report of 1988, presented to Congress by then Register Ralph Oman, examining the issue of state infringements and Eleventh Amendment immunity. At that time, five district courts had held that the copyright law did not anywhere clearly state that Congress expressly intended to abrogate state immunity from claims of copyright infringement.

Shortly after that USCO report was published, the Supreme Court, in the case Pennsylvania v. Union Gas, held that Congress, pursuant to its rights under the commerce clause in Article I, had the authority to abrogate state immunity. Based largely on the weight of that decision, Congress passed the Copyright Remedy Clarification Act (CRCA) of 1990, along with its sibling laws the Patent Reform Act (PRA) and the Trademark Remedy Clarification Act (TRCA). This trio of IP laws responded to the obstacles presented in those prior cases during the 1980s by expressing Congress’s clear intent to abrogate immunity in suits pertaining to its Article I powers under paragraph 8. But …

In 1996, in the case Seminole Tribe v. Florida, the majority opinion written by Justice Rehnquist overturned Union Gas, stating, “In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.” In other words, Seminole Tribe held that Article I powers are not sufficient grounds for Congress to abrogate state immunity, which meant that the three IP clarification laws of 1990 now rested on shaky ground.

In Justice Stevens’s dissent in Seminole Tribe, he argued that in overturning Union Gas, the Court “…prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.” Then, in refuting the majority’s interpretation of Chisolm, he added, “For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.”

What About Due Process?

“States…have a ‘specific duty’ not to infringe that [which] ‘is assigned by law’ and upon which ‘individual rights depend.’ One might therefore expect that someone injured by a State’s violation of that duty could ‘resort to the laws of his country for a,’ remedy, especially where, as here, Congress has sought to provide one.”  – Justice Breyer, Allen v. Cooper, citing Marbury v. Madison.

Three years after Seminole, in a pair of decisions known as the Florida Prepaid cases, both the PRA and the TRCA failed, subject to the Union Gas precedent that Article I powers were no basis for Congress to abrogate State immunity. But, also in Florida Prepaid, the question was presented as to whether Congress has the right to abrogate immunity pursuant to its powers under Section 5 of the Fourteenth Amendment, which says that Congress may pass laws necessary to protect citizens’ rights under Section 1 of that amendment, including this right: “nor shall any state deprive any person of life, liberty, or property without due process of law.”

So, again, any reasonable person might ask, if an IP plaintiff can only pursue a complaint in federal court, and state immunity bars access to that court, then isn’t the claimant being denied due process? Well ….  Justice Rehnquist, in considering whether other avenues of due process, like tort or unfair competition, might be available state court remedies, referred to the unlikely prospect of shoehorning IP complaints into those other legal doctrines as “inconvenient” for a plaintiff to attempt.

Further, it had been observed by the Copyright Office and others that even if those state remedies were viable, the resulting caselaw would be a thicket of common law IP precedents, growing like legal kudzu atop the already complex hedgerows dividing the federal circuits. But this difficulty Rehnquist dismissed as an “Article I problem.” The same Article I he opined does not give Congress the power to abrogate state immunity. Anyone who’s ever read Joseph Heller’s Catch 22 may find this passage in Seminole agonizingly familiar. 

Concurrent with the Florida Prepaid decisions, the case Alden v. Maine put another nail in the coffin of Congress’s Article I right to abrogate immunity and, significantly, reiterated that state sovereign immunity was not created by the Eleventh Amendment, but was affirmed by it. That seemingly moot distinction is actually a matter of considerable debate, about which I refer you to the “Holy Grail” comment made by Mr. Orth.

After Alden, a 2000 copyright case, in which author Denise Chavez’s work was infringed by the University of Houston, the Fifth Circuit dismissed on immunity grounds and officially doomed the CRCA to the same fate as the PRA and the TRCA.  In fact, after Chavez v. Arte Publico Press, many experts were surprised that the Supreme Court granted cert in Allen v. Cooper, assuming the questions to be presented were already answered and, for rightsholders, a dead issue. Allen presented a clause-by-clause argument, asserting that the IP clause is distinguishable from other Article I powers of Congress, and although that argument failed, I will discuss it a little further in another post in this series.  And that brings us to where things stand today.

Overcoming Eleventh Amendment Immunity

In 2003, in response to the 1990s defeats of the CRCA et al, Congress again took up the issue, seeking various rationales to abrogate immunity for IP claims against states. Among the arguments presented, one that should be especially irritating to creators, is the fact that a state may own intellectual property, and file suit for infringement, while it remains shielded from litigation, leaving it free to infringe. At that time, this injustice was seen as a possible avenue—to deny states the ability to litigate IP claims unless they waived their immunity accordingly. This was, and remains, a non-starter due to the strenuous objections of state Attorneys General.

Today, despite the Court’s apparent dismay with its conclusion in Allen, the so-called roadmap it drew Congress for abrogating immunity is actually a very narrow path through some pretty dense woods. Based solely on the Fourteenth Amendment, section 5 premise, the Court held that the only foundation for abrogating immunity will have to be based on a preponderance of evidence that there is a pattern of “intentional and reckless” infringement by state entities. This is no small feat. For one thing, nobody can say how much evidence of state infringement would constitute a pattern compelling enough for the Court to sustain abrogation. And the only way to find out is for Congress to pass new laws, and some party to litigate against a state all the way to the Supreme Court.

Further, the evidence needed to show a pattern of “intentional and reckless” infringement may not be available, particularly because the largest entities with the capabilities to obtain that data may not have it anymore. Chris Mohr, VP for Intellectual Property and General Counsel at Software & Information Industry Association, explains:

“We still get whistleblower reports of state entities that infringe, but we haven’t been tracking that information for 20 years because Allen reached the same end result as the Fifth Circuit did in 2000 [in Chavez].  As a result, it didn’t make sense to track and organize that information in the context of our enforcement program.  But that’s not to say this problem has gone away, and many of our members are concerned.  COVID caused an increase in the licensing of software and materials for distance learning, creating exposure for many of our members.  One of them is now in litigation against the state of Nebraska for copyright infringement.”

I will interject a comment here to say that the status quo seems wildly out of whack with fairness and the purpose of U.S. intellectual property law. It should not be the case that individual authors, exercising their constitutional rights as individuals, should have the burden of demonstrating that they are members of a protected class, merely because the alleged infringer happens to be a state.

On the contrary, a single state infringer, like a university or museum, can cause considerable harm to a single author by means of a single act of infringement. And copyright law is intended to remedy that one infringement for that one author. So not only might the scope and frequency of state infringements prove difficult to ascertain, it is truly unfortunate that it is necessary at all. The Eleventh Amendment leaves the individual author as a David, sans slingshot, facing a multitude of Goliaths.

So, this is an odd moment. The Supreme Court and Congress both seem to want the law to work differently than it does. But an amendment passed in 1795, the foundation of which is the subject of endless, circular debate, serves as a major obstacle to what most people would probably consider basic fairness for rightsholders, and beyond.

To date, almost the only successful abrogation of state immunity, pursuant to the Fourteenth Amendment, has been in the service of major civil rights disputes with states, like the Voting Rights Act (1965). Because that history is intertwined with racial disparity and the original predicate for the Fourteenth Amendment, my friend Steve Tepp is inclined to say that “So far, it seems that we can only abrogate sovereign immunity regarding any issue over which we fought a civil war.”  That’s setting the bar rather high I would say. But that’s how things stand.

Section 230 Review: Right Topic, Wrong Administration

I think Senator Blumenthal summed it up about right, as he was quoted in this week in the Wall Street Journal:

“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police.”

In the post I wrote right after Trump threw a hissy fit because Twitter fact-checked him, I said that I have been worried about the platform responsibility narrative becoming grossly distorted by the nature of this administration. It’s no surprise that the laissez-faire policies of the major platforms, with regard to content moderation, were set on a collision course with America’s new reality-bending president.

As Trump’s unbridled contempt for facts, his tacit endorsements of hate groups, and his violations of core American principles morphed into official policy, it was inevitable that there would be a clash of conscience for at least some of Silicon Valley’s leaders and employees. They should have seen it coming but chose not to.

Instead, high on their own utopian, guardians-of-democracy rhetoric, and insulated by liability shields like 230, Big Tech refused even to consider how their grand experiment in speech absolutism, and the wisdom of crowds, might create a monster. So, when the beast finally broke out of the lab, they should hardly have been surprised that their futile efforts to contain it would only make it angry.

Of course Trump is demanding platform neutrality. Neutral is exactly what the platforms kept saying they were for years. Silicon Valley wants the platform liability shields left just as they are. And in defense of that status quo, they have long claimed, and largely maintained, a policy of “neutrality” with regard to user uploaded content. But this assertion, already dubious, became both untenable and dicey for Big Tech operators, when the worst abuser of their community standards became the federal government itself.

But let’s be honest. Most Americans, left, right, and center, agreed that neutral was the right gear for Facebook and Twitter et al. Never mind that neutrality is not the aim of Section 230. That’s just a pesky little detail about the law itself. But for years, Big Tech used the protection of 230 to justify “neutrality” and to evangelize that policy as allegedly protecting our speech rights. So, the maddening irony of the moment is that Trump is merely insisting upon the internet that everyone naively said they wanted — and many still say they want, even as the Republic seems to hang by a thread most days. So, stick that in your bong and burble it for a while.

There is no other way to frame the so-called political party conversation now. Anyone with a basic working knowledge of American civics and history knows that the current administration is neither Republican nor conservative by any reasonable definition of either of those terms. When Trump and his flock complain about “censorship of conservative views,” online, what they are referring to is moderation of potentially hazardous lies, conspiracy theories, incitements of violence, and hate speech. If those modalities are truly part of the Republican party’s new brand, we’re going to have a civil war of some kind, at which point there will be no need to worry about nuanced legislation like Section 230.

But as I said before, that’s a problem the Republicans will have to work out for themselves. They’ll have to decide, and soon, whether they are all-in on this cult of galloping ignorance, incompetence, and cruelty. Meanwhile, I see legitimate conservatives tweeting several times a day—and quite often to criticize Trump for what he has done to their party. Bill Kristol’s tweets aren’t being taken down, and last I checked, he’s pretty damned conservative.

In the meantime, what will unfortunately be obscured by all this noise are the very serious reasons why reasonable people of good faith seek amendment to the Section 230 liability shield. These include people like attorney Carrie Goldberg, whose Brooklyn law firm defends real victims of online exploitation and severe harassment, while the platforms enabling those crimes (even intentionally) remain shielded by Section 230. This is the kind of policy conversation we are supposed to be having. And we were having it, until Trump got involved.

It is a tragic irony that whiny old men put Section 230 on the table for their whiny old man purposes, when so many of the real citizens seeking reform happen to be (as usual) vulnerable women. For instance, after years of reasoned debate on ways to address revenge porn online, Senator Hawley introduced an amended bill, dated today, that does nothing for people who have suffered, or may suffer, real harm from the misapplication of Section 230. Instead, the Hawley bill is merely a reaction to claims of “politically biased moderation,” which is a euphemism for removing the toxic, conspiracy-laden bullshit spread by the current president. Because that’s where we are now.

Because many (if not all) of these new, reactionary proposals for 230 revision will seek to punish Silicon Valley for moderating the worst of Trump (and that’s saying something), it seems unlikely that any such legislation will make it through this Congress before the end of the year. By that time, if there is any hope left for America, this national nightmare will end, and the historians can get to work on the Bruegel-inspired pop-up books describing this era.

I have yet to review the June 2020 DOJ report on Section 230, and because that review started before this topic floated all the way onto Trump’s radar, it may contain some reasonable recommendations that go beyond political theater. We’ll see. But now that the 230 conversation has been subsumed by Trump’s personal beef with Silicon Valley, it’s just another side show in the circus. It would be nice if one day, sober heads can resume this important conversation. Now, all we need are some sober heads.

See also: Civil rights groups call for ‘pause’ on Facebook ads.

DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this:  Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states. 

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.  

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans. 

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes