Tag: Allen v. Cooper

NC Court Grants Motion in Allen v. Cooper to Reconsider Takings Claim

On March 23, 2020, the Supreme Court remorsefully found in Allen v. Cooper that its own precedents obligated it to affirm that states are immune from federal litigation in claims of copyright infringement. On September 4, 2020, plaintiff Rick Allen filed a motion to reconsider the North Carolina district court’s 2017 dismissal of his takings claim under the Fifth Amendment for that state’s unlicensed use of his audio-visual works documenting the recovery of Blackbeard’s ship Queen Anne’s Revenge. On August 18, 2021, the court granted Allen’s motion.

Anyone who has followed the matter of sovereign immunity and state infringement of copyrighted works is aware of the byzantine, Heller-esque logic at the heart of this mess in which no reasonable party believes that justice is being served. Still, here’s the general reasoning in plain terms:

The Eleventh Amendment bars persons from bringing federal lawsuits against state or state actors …

BUT Congress, believing (perhaps naively) in its Article I powers to make laws, passed a trio of IP remedy statutes, clearly articulating its intent to abrogate sovereign immunity in cases where the state, or state actors, infringe trademarks, patents, or copyrights.

BUT in a series of cases in the late 1990s and culminating in 2000, the Supreme Court decided that Congress does not have the right under Article I to abrogate Eleventh Amendment immunity, and thus, held the three IP remedy laws to be unconstitutional.

BUT in Allen v. Cooper, although the Supreme Court affirmed those 90s-era decisions under the principle of stare decisis, the justices seemed pretty sad about it, even calling the state of North Carolina et al “pirates” for their conduct toward Mr. Allen et al. Thus, the Court also provided a roadmap for Congress to validly abrogate sovereign immunity in the future.

NOW, one of the principles supporting Eleventh Amendment immunity is that a plaintiff who has a beef with a state is presumed to have recourse to due process in that state’s courts. BUT there is no mechanism for bringing a copyright infringement claim in state courts. SO, that’s a head-scratcher.

MEANWHILE, the Fifth Amendment prohibits the state from taking private property for public use without due process, and the Fifth Amendment naturally carries more weight than a few pesky statutes written by Congress.

BUT at the time that Mr. Allen initially filed a takings claim against North Carolina in 2017, the legal precedent held that before a party may file a claim in federal court, he must first try to remedy his complaint in state court.

BUT when the complaint is an unconstitutional taking of an intangible form of property protected by federal statute, devising a state complaint is dubious at best. AND even if a plaintiff does file a claim in state court and loses, he is then barred from filing a claim in federal court.

MEANWHILE, just to be total dicks about this particular case, North Carolina passed a statute colloquially called “Blackbeard’s Law” which asserts state ownership of any AV material captured of any historic vessel found in North Carolina waters.

THEN, in 2019, the Supreme Court held in a municipal takings case, Knick v. Township of Scott, that a plaintiff need not exhaust state remedies prior to appealing to a federal forum for a claim of “unconstitutional treatment.”

SO, the decision in Knick created the foundation for Allen’s motion to reconsider his takings claim, and the District Court for the Eastern District of North Carolina agreed.

PLUS, because the Supreme Court held that the copyright remedy law was invalid as a prophylactic abrogation of immunity, the district court will now reconsider Allen’s case in light of United States v. Georgia (2006), which allows for case-by-case abrogation, if there is both a violation of federal statute and constitutional rights.

NOW, this will be interesting to watch. For one thing, if Rick Allen finally achieves justice and compensation, other rightsholders with infringement claims against state actors may also find remedies.

More broadly, though, when the Supreme Court ruled in Allen, it invited Congress to have another go at writing statutes to abrogate state immunity in IP infringement claims against states.[1] But in doing so, the Court drew a very narrow roadmap through the Fourteenth Amendment §5, which grants Congress authority to pass laws that bar state deprivation of property without due process under §1 of that amendment. So, with that in mind, this quote from the district court’s decision to grant Allen’s motion for reconsideration seemed worthy of highlight:

“Even though Knick was not a sovereign immunity case, its conclusion that a compensatory remedy is constitutionally-required was necessary to its decision and is contrary to [the precedent] conclusion that state sovereign immunity can bar takings claims brought under the Fourteenth Amendment.”

What that suggests to this lay reader is that if Allen prevails in his takings claim, and Congress does write new IP remedy laws, the statutes are likely to hold up to a constitutional challenge predicated on sovereign immunity. In fact, in granting this motion, the district court also reiterated its own interpretation on the limits of Eleventh Amendment immunity, writing:

“…this Court stated that the position that the Eleventh Amendment was intended to constitutionalize a broad principle of sovereign immunity contradicts both the historical evidence and the plain meaning of the Amendment that the founders wrote a Constitution upon the sovereignty of the people, rather than that of the States.”

Meanwhile, any state actors who interpret the SCOTUS outcome in Allen as a license to steal intellectual property, may want to reconsider adding to the body of evidence showing that state infringement is rampant, because that evidence will be the foundation on which Congress writes new laws abrogating sovereign immunity in IP cases.

This all seems like a long way to go to right an obvious wrong, and kudos to Rick Allen and his counsel for continuing this fight, even after defeat in the Supreme Court. Assuming this issue will one day be resolved, rightsholders will owe Allen and others in this fight a tremendous debt of gratitude.

[1] With the exception of Justice Thomas, who stated in his concurring opinion that the Court has no business directing Congress to do anything at all.

State Sovereign Immunity and Copyright with Rick Allen & Kevin Madigan

You wouldn’t think that a state entity would have the right to seize your intellectual property any more than it would have the right to seize other forms of property without due process. But it can. In this podcast, I talk with filmmaker Rick Allen and copyright expert and advocate Kevin Madigan about the challenge that state sovereign immunity poses to creators of copyrightable works.

Rick Allen is the CEO of Nautilus Productions in North Carolina. He spent seventeen years documenting the research and recovery work done on Blackbeard’s flagship the Queen Anne’s Revenge, after it was discovered off the North Carolina coast in 1996. When the state made infringing uses of Allen’s material, he sued, and that case Allen v. Cooper went to the U.S. Supreme Court in 2020, which affirmed that immunity barred Allen’s claim.

Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the advocacy organization Copyright Alliance in Washington D.C. He was previously Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at George Mason University’s Antonin Scalia Law School. 

Contents

  • 1:34 – Overview of state sovereign immunity.
  • 5:53 – Rick Allen background & eventual conflict with North Carolina.
  • 16:21 – Why Blackbeard’s Law & what about breach of contract?
  • 19:32 – Why SCOTUS took Allen v. Cooper & what did we get out of it?
  • 22:38 – SCOTUS seemed disappointed in its own opinion.
  • 26:45 – States own IP, but enjoy immunity from infringement.
  • 28:08 – Results of survey & is state infringement increasing?
  • 31:57 – Anecdotal observations about state infringement.
  • 35:02 – Aberration of justice to have to show mass infringement.
  • 38:37 – Can have a devastating effect on creators.
  • 39:55 – Are we increasing state actors’ awareness of their immunity?
  • 42:04 – State remedies do not really exist.
  • 50:20 – Allen’s takings claim.
  • 52:45 – Where do things stand?
  • 54:47 – Funny coincidences.
  • 56:30 – Understanding the impact on Allen and all creators.
  • 59:04 – Substantial investment in works.
  • 01:001:58 – Copyright doesn’t protect labor.
  • 01:03:13 – The myth that creators will create no matter what.

Allen v. Cooper Revisited III: Data Suggests States Willfully Infringe Copyrights

In my first two Revisited posts summarizing the legislative and judicial history leading up to the Supreme Court decision in Allen v. Cooper, I dove into some fairly deep waters. But now, let’s return to the practical matter at hand for contemporary authors of creative works. In short, if a state entity infringes your copyrights, you’re basically hosed. Meanwhile, unjust though it is, state entities, as major copyright owners, may avail themselves of the law when enforcing their copyrights against infringement.

To be precise, if a state actor infringes your copyrights, you cannot not sue for money damages. At best, you may be able to obtain an injunction against the state entity and force it to discontinue the infringing conduct; but without the prospect of money changing hands, initiating a federal lawsuit is prohibitive for most authors. To summarize the Supreme Court in Allen v. Cooper, it upheld its own precedent rulings (1900s-2000) that Congress may not abrogate 11th Amendment immunity (a.k.a.) state sovereign immunity, even under its Article I power to protect intellectual property.

But, as mentioned, the Court’s opinions in Allen also provided Congress with a roadmap, albeit a limited one, whereby new remedial legislation could potentially abrogate state immunity for infringements of intellectual property. Any new legislation must be based solely on the 14th Amendment’s prohibition against the taking of property without due process, and it must be backed by solid data showing that “willful and reckless” infringement by states is a substantial enough problem for creators that the constitutional abrogation can withstand the precedent decisions in these matters. When a case is ultimately tried of course.

State Actors Seem to Know They’re Immune

In response to the Court’s legislative “roadmap” in Allen, Senators Tillis and Leahy sent letters to the Copyright Office and the Patent and Trademark Office requesting comment and evidence related to the scope of state IP infringement. In response, the USCO issued a notice of inquiry seeking input from creators and copyright owners about their experiences with state infringers. In support of this effort, the Copyright Alliance created a public survey, which included the USCO criteria. Preliminary data from the CA survey bolsters the assumption that state infringement is increasing and may be increasing because state actors are aware of their immunity from litigation.

Over a six-week period, 655 Copyright Alliance members responded, with 115 reporting that their works were infringed by state entities. Specifically, Congress should take note of those rightsholders who report that they were initially contacted by state actors for licenses, and when the rightsholders declined, the state actors proceeded to use the work(s) anyway. “… respondents who viewed the infringement as intentional…[described] situations in which an attorney’s warnings were ignored, copyright management information (CMI) on the works was ignored or removed, or use of the works continued when an entity was aware that a license had expired,” the Copyright Alliance report states.  

Further, not only do these data imply a substantial amount of willful infringement, but 44% of respondents report that when they demanded that the state actors cease the infringing conduct, the infringers specifically invoked sovereign immunity as a reason for non-compliance. More than half the infringing entities, according to the creators who offered descriptions, were state universities, while the rest were organizations like tourism boards, state departments, and museums.

Assuming that these data indicate that many state infringers are acting upon an increased awareness of their immune status, this points to a reasonable conclusion that a substantial proportion of state infringements meet the standard of “reckless and willful,” as the Supreme Court opined in Allen would be necessary for Congress abrogate immunity. Meanwhile, nearly 70% of respondents to the CA survey report that they believe they lost revenue or licensing opportunities because of state infringement.

Oddly enough, it is possible that high-profile litigation like Allen v. Cooper, which principally affirmed a 2000 decision (Chavez v. Arte Publico Press) on the state immunity question for copyright infringement, may have the effect of emboldening state actors to engage in more brazen acts of reckless and willful infringement. At the same time, the Court was unequivocal in its unanimous view that state immunity in this regard is simply wrong; and absent Rick Allen’s lawsuit, authors would not have the SCOTUS opinions in their arsenal.

In the meantime, Rick Allen, on September 4, filed a motion to reconsider one count of his complaint against the state of North Carolina. The motion states, “These allegations (and still further allegations of intentional infringement, inadequate remedies, and absence of process that Allen will add if permitted to do so) would support a finding that North Carolina’s conduct violated not only the Copyright Act but the Fifth and Fourteenth Amendments as well.” More on that in the next post addressing state IP infringement.