Tag: sovereign immunity

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.

Decision in Photographer Jim Olive’s Case Confirms What We Already Knew

“Congress, however, barely considered the availability of state remedies for patent infringement and hence whether the States’ conduct might have amounted to a constitutional violation under the Fourteenth Amendment. It did hear a limited amount of testimony to the effect that the remedies available in some States were uncertain.

The primary point made by these witnesses, however, was not that state remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies and might undermine the uniformity of patent law.”

– Opinion of the Court, Florida Prepaid v. College Savings Bank, Rehnquist J., June 23, 1999. –

Twenty-two years, almost to the day, after the opinion cited above was delivered by the U.S. Supreme Court, professional photographer Jim Olive was assured by the Texas Supreme Court that state remedies for intellectual property infringement are not merely “less convenient than federal remedies,” they are non-existent. Knowing that the University of Houston was immune to a claim of copyright infringement, Olive filed suit in state court arguing that the college’s unlicensed use of his aerial skyline photograph in 2012 was an illegal taking under both the U.S. and Texas State Constitutions.

As explained in detail in my Allen v. Cooper Revisited series of posts, the status quo holds that any state actor may infringe intellectual property with impunity due to the Supreme Court’s findings that the Eleventh Amendment bars suit of state entities in federal court. In the early 1990s, Congress passed three laws explicitly stating its intent to abrogate Eleventh Amendment immunity in suits for infringements of trademark, patent, and copyright; but by the end of that decade, those laws were gutted by the Supreme Court asserting the primacy of sovereign immunity. Coincidentally, the University of Houston happened to be the defendant in the 2000 case (Chavez) that finally affirmed the death of the copyright bill in that trio, the Copyright Remedy Clarification Act (CRCA).

What the Rehnquist quote cited above refers to is the fact that when Congress held hearings in the drafting of those IP remedy laws, the question was raised as to whether claimants might have adequate recourse under state law to remedy IP infringements. If so, it was argued by some parties that the grounds for abrogation of Eleventh Amendment immunity could be questionable as a constitutional matter. Among the remedies contemplated were takings claims, exactly as Olive has pursued under Section 5 of the Fourteenth Amendment, which bars both state and federal taking or destruction of property without due process. Further, the Texas State constitution contains an even more explicit takings clause.

The Problem with the Outcome in Olive’s Case

In a nutshell, the Texas Supreme Court decided that copyrights are not property—at least not in the sense that they can be subject to a takings claim the way real property or personal property can be. To consider IP theft a taking, as the court stated, relies upon holistically depriving the owner of his rights in the property at issue. Simply put, if the state appropriates your house without due process, it has taken both your physical property and all your rights associated with that property and has entirely deprived you of your ownership under the doctrine of takings.

But because the infringement of Olive’s photograph does not exhaustively deprive him of his copyrights in the image (e. g. the right to license to other parties), the Texas court held that copyrights are not properly a subject of his claim. As Kevin Madigan wrote in his excellent breakdown of this case for Copyright Alliance, “Unfortunately, the Texas Supreme Court confirmed that takings claims are bound to fail if a copyright owner retains any portion, no matter how small, of their bundle of rights. It’s difficult to imagine a scenario in which an instance of infringement would strip a copyright owner of all conceivable rights in a work, and therefore it would be impossible for a takings claim to succeed.”

The Rehnquist opinion in 1999 was naïve in kicking the questions of state remedies and due process down the road to see what happens. Moreover, as Justice Stevens articulated in his detailed dissent in the catalytic case (Seminole Tribe v. Florida) in this narrative, the Supreme Court probably got the Eleventh Amendment wrong. Stevens wrote, “There is a special irony in the fact that the error committed in the Chisolm majority [the case that precipitated the Eleventh Amendment] was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.”

Certainly, it is hard to imagine that Congress’s intent in 1795 was to pass an amendment that would so thoroughly curtail its own power to write enforceable laws under Article I. Meanwhile, the Texas Supreme Court decision makes sense inasmuch as the existence of the IP clause in Article I implies that Section 5 of the Fourteenth Amendment refers to other forms of property.

Just as it is clearly a dubious venture to assert a copyright complaint in the form of a takings claim, it is a dubious proposal to assume that either the Framers or any Congress close to the founding imagined that it would be necessary to appeal to a future amendment in order to enforce a right explicitly established in Article I. To say nothing of the fact that the IP clause contains the only explicit declaration of a citizen’s right in the main body of the Constitution.

As Madigan argues in his post, the one silver lining in Jim Olive’s defeat in the Texas court is that it clearly proves that state remedies for IP infringement by state actors do not exist. Congress must, therefore, once again seek to abrogate immunity in these instances. No argument of justice can reasonably be made to the contrary.

Photo by: C5Media

Wrestling With the Ghost of Queen Anne: A Nerdy Look at Allen v. Cooper

Most readers know that the conflict in Allen v. Cooper began when the State of North Carolina made unlicensed use of Rick Allen’s copyrighted AV and photographic works documenting recovery and research of Blackbeard’s flagship Queen Anne’s Revenge. On March 23rd, the Court ruled that Allen was barred from bringing suit against the State under the principle of “sovereign immunity,” as expressed in the Eleventh Amendment, and further reiterated that this immunity could not be abrogated, even for a plaintiff defending a constitutional right, expressly protected by federal law, the CRCA of 1990.  My last post about this case discussed the court’s reasoning.

As a creators advocate, I was disappointed that the Court found itself guided by precedent to scuttle Allen’s claim. But I will also admit that, as a history geek, and one who likes a good coincidence, it is hard not to appreciate the fact that the pirate ship at the center of this story carries the mind back a few centuries across the tempests of Anglo-American legal precedents, with which the Supreme Court found itself contending in 2020.

What may be immediately resonant to the copyright nerd is that the pirate ship Queen Anne’s Revenge, shares the eponym with the English legislation, the Statute of Anne, passed in 1710. Often referred to as the first authors’ copyright law, the Statute of Anne was the model for America’s first copyright statute in 1790. But there is more beneath the paint on Blackbeard’s ship than nominal happenstance. If you will indulge me …

The Divine Right Still With Us?

We Americans have generally been taught to think of the Revolution as an outright rejection of the “divine right of kings,” and that the cheekiness of the war was punctuated by an equally audacious Constitution that directly expresses contempt for nobility and royal prerogative. But, as almost any lawyer will tell you, this ideological departure (on paper) from the mother country was not matched by a clean break from English law or custom. How could it have been when the Framers and citizens of new America were, after all, English?

So more than 230 years after kicking George III in the pants, faint remnants of the “divine right” still echo in the halls of American jurisprudence, and still befuddle large segments of the population, who earnestly declare that certain individuals are “sent by God” to lead the United States. That profoundly un-American sensibility is a much bigger sociological phenomenon than I will presume to address here, but in a case like Allen v. Cooper, the “divine” anachronism takes the form of “state sovereign immunity,” which the Supreme Court described thus in 1999 in Alden v. Maine:

“The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity.”

There is an extent to which that opinion alludes to the haggling at the founding period, which was necessary to encourage ratification of the Constitution by those factions who would have preferred—indeed had expected—that the newly independent states would be separate (i.e. sovereign) nations after the war. At the same time, however, the notion embodied in the word sovereign is arguably a holdover from English common law, an epic tale in which the English hacked away at, though never quite eradicated, the privileges of its monarchs to do whatever the hell they wanted.

Queen Anne’s Revenge – Against Whom?

At present, historians can only speculate as to why the pirate William Thatch (Teach), a.k.a. Blackbeard renamed his captured French ship the Queen Anne’s Revenge in 1717 or, indeed, who or what the metaphorical target of the late queen’s retribution might have been. It is guessed by some that the British Navy sailor turned pirate espoused a fealty for the Jacobite cause to restore the Stuart line to the throne; or it is theorized that because Thatch fought for the British in “Queen Anne’s War,” the rechristening was a dig at the French from whom he’d commandeered the vessel. Apropos the Jacobite theory, Anne was indeed the last of the Stuart monarchs, and when she died in 1714, the Crown passed to her husband George I, a prince of Denmark and a German speaker. Consequently, the disgruntled Jacobites invoked the “divine right” to argue that the Stuarts were the true heirs to the throne; but, in truth, Anne’s ascension itself could hardly have supported any divine sensibilities.

In fact the Stuart dynasty, beginning with James I in 1603, was rather well pummeled by the unrest that rocked England for nearly two centuries over the matter of whether the Crown or the Parliament was supreme—a fact dramatically manifest in the beheading of Charles I in 1649 following civil war. In this long and byzantine history, all royal prerogatives were, naturally, tethered to the question of the “divine right,” which was of course complicated by factions of religious faith. 

While there is no hope of unpacking all that history in a short post, suffice to say that Queen Anne’s ascension to reign over Great Britain in 1707, was a byproduct of the Glorious Revolution that deposed her father James II, and was more generally a result of forces that had substantially limited royal prerogatives. Moreover, Anne’s reign was reportedly marked by a fairly judicious exercise of her authority in balance with England’s nascent republicanism. So if Blackbeard did name his newly acquired flagship in a fit of Jacobite zeal, Queen Anne was hardly an avenging spirit in that regard. Likewise, the copyright law that bears her name is something of an anti-monarchical milestone itself.

The Statute of Anne – A Break With the Sovereign

The short description of the Statute of Anne is that it was the first in Anglo-American law to transform copyright from a publisher’s right into an author’s right. The full story weaves in and out of the aforementioned political/religious turmoil, beginning with the fact that right is not the correct word to describe the monopoly privileges granted by English sovereigns to the more than 100 trade guilds of London, including the organization of booksellers known as the Stationers’ Company. The exclusive “right” to publish—a monopoly that was ad hoc at best—may be described as a proto-copyright regime, but one that has little resemblance to modern copyright law. Regardless, the exclusive privileges granted to the Stationers’ Company, and every other guild in London, were among the royal prerogatives that were often at the heart of conflict in the larger narrative of controversy between royalists and parliamentarians. 

It is true that one important feature of the Statute of Anne is that the preamble states that its purpose is to protect authors from unlicensed printing of their manuscripts. Scholars also know the more complicated history that the bill was catalytic to still-murmuring debate as to whether the author’s right is grounded in natural rights or is purely a creature of statute. For the purposes of this post, though, I would note that the Statute of Anne, as an act of Parliament interceding on behalf of authors, is exemplary of the diminished prerogatives of the Crown by the end of the seventeenth century. It represents not only a diminishment in the power of the Stationers’ Company, but a diminishment in the power of the monarch to grant privileges at all. 

American Copyright & Citizen Sovereignty

Although the American Framers did borrow both rationale and key mechanisms from the Statue of Anne for the first American Copyright Act of 1790, we cannot overstate the significance of the intellectual property clause in Article I as both a symbolic and pragmatic split with the mother country, and the baggage embodied in her statute. Article I, section 8, paragraph 8 is the first and only mention of an individual right in the Constitution prior to adoption of the Amendments. And particularly with regard to copyright (because it protects expression), I would argue that the clause reinforces the notion that the individual citizen is sovereign, and, therefore, Congress may adopt laws necessary to protect the citizen’s dominion over the products of his or her mind. So, how is it that the “sovereign” State is allowed to invade that principle?

Any number of scholars will very reasonably maintain that American “state sovereign immunity,” affirmed in the Eleventh Amendment in 1795, is both divorced from the spirit of monarchical absolutism and has pragmatic purpose in our federalist system, which is why many legal professionals will use the term “Eleventh Amendment immunity.” Nevertheless, as a practical matter, it cannot be denied that Rick Allen was unable to avail himself of his Constitutional right to hold the State of North Carolina liable for taking his property. Much like kings and queens used to do to their subjects. So the words sovereign immunity are not wholly emancipated from their feudal origins. 

American copyright law became something very different from its English precedents, not least because of the First Amendment. England’s proto-copyright regimes were, for centuries, entangled with the state’s authority to approve the publication or distribution of a work in the first place, and many of these regimes lasted into the twentieth century. For instance, the legal basis for the Master of the Revels, who approved works for the stage in Shakespeare’s time, was still extant, albeit in a limited form, until 1968. 

The sovereign right of the American citizen to create more or less whatever he or she wants (notwithstanding a few bouts with obscenity laws), represented a significant break with those ancient ties. And a consequence of that split was the greatest output of professional creative works anywhere the world. Yet, as we see in Allen v. Cooper, modern jurisprudence remains haunted by these fragments of history, drawing us back to a time when pirates and princes took what they wanted, and citizens could hardly tell the difference between the two.   

Anne photo: by Chris Dorney 

Pirate image by: neelix3k

Document: Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org