Civil and Human Rights

Copyright Cavalry Supports Pirate Ship Photog At High Court

A slew of high-profile groups have jumped into a U.S. Supreme Court case over whether copyright owners can sue state governments for infringement, arguing that Congress had the right to override sovereign immunity and that states need to be held accountable.

More than a dozen amicus briefs were filed at the Supreme Court this week in support of reviving the Copyright Remedy Clarification Act, which allows copyright owners to sue states for infringement.

The briefs came from a wide range of groups, including the register of copyrights at the time the CRCA was passed; industry groups such as the Recording Industry Association of America; the New York City Bar Association and other legal organizations; and major companies, including Oracle America Inc.

In one brief, the Copyright Alliance and U.S. Chamber of Commerce said the CRCA was needed to protect a “fundamental unfairness in the operation of our copyright law.”

“Congress recognized that allowing states to infringe copyrights with impunity undermines the basic objectives of copyright law,” the joint brief states.

The amici are stepping up in a case filed by filmmaker Frederick Allen, who wants to use the CRCA to sue the state of North Carolina for using his footage of a pirate shipwreck. The high court agreed to hear his case in June.

The CRCA was meant to override the immunity states are given under the Eleventh Amendment for copyright infringement cases, but it has been repeatedly struck down by courts that have said Congress can’t undermine the Constitution.

In another brief this week, former register of copyrights Ralph Oman said he looked heavily into the immunity issue as Congress was considering the CRCA. At Congress’ request, he reviewed dozens of public comments, before testifying that the legislation was needed to stop widespread infringement and confirming it was constitutionally allowable.

“Although the record compiled is limited in some respects, it documented an emerging and troubling problem of copyright infringement by states and a total absence of effective remedies to stem such abuse. And it substantiated prevailing concerns that, without abrogation, states would engage in copyright infringement with impunity,” Oman’s brief says. “It is now clear that those concerns were more than warranted and that Congress’s predictive judgment was accurate.”

RIAA, along with the American Association of Independent Music and National Music Publishers’ Association, said the courts have ignored how “rampant” infringement by states is, and how necessary a deterrent is.

“During the years in which the CRCA has been deemed invalid, state infringement of copyrights — including obviously willful infringement — has reached unprecedented levels,” according to the music industry brief.

Beyond the New York City Bar Association, legal groups chiming in to support reversing the Fourth Circuit include the Intellectual Property Law Association of Chicago, the Constitutional Accountability Center and the Washington Legal Foundation, along with groups of law professors and legal scholars.

The WLF in particular argued that the CRCA wasn’t even needed for states to face copyright suits, as states had agreed to allow such litigation when copyright law was being developed. Still, it argues that the ruling should be reversed, and that the CRCA arguments were “compelling.”

“The history of the Copyright Clause, the reasons the Framers inserted it into the Constitution, and the laws enacted under its auspices just after ratification confirm that it was not only an Article I grant of authority to Congress but also a way to subordinate state sovereign immunity in copyright enforcement suits,” WLF’s brief states.

Among the other amici are Dow Jones & Co. Inc., the National Press Photographers Association and the Software & Information Industry Association, all of which also encouraged the justices to revive the CRCA.

The case dates to 2015, when Allen and his Nautilus Productions sued North Carolina. The state had refused to stop using his footage of the Queen Anne’s Revenge, the flagship of the famed pirate Blackbeard, which ran aground in North Carolina.

The North Carolina Department of Justice declined to comment. Counsel for Allen and Nautilus didn’t immediately respond to a request for comment Wednesday.

CAC is represented by in-house counsel. The Copyright Alliance and the Chamber of Commerce are represented by their in-house counsel. Dow Jones is represented by Patterson Belknap Webb & Tyler LLP and in-house counsel. IPLAC is represented by Marshall Gerstein & Borun LLP, Banner Witcoff and in-house counsel. The law professors are represented by Beck Redden LLP and counsel from the Washburn University School of Law. The music industry groups are represented by Munger Tolles & Olson LLP.

The NYC Bar Association is represented by Hughes Hubbard & Reed LLP. Oman is represented by Latham & Watkins LLP. Oracle is represented by Orrick Herrington & Sutcliffe LLP. The photographer groups are represented by Maddrey PLLC, Thompson & Knight LLP and in-house counsel from the National Press Photographers Association. The scholars are represented by counsel from Duke University School of Law and Locke Lord LLP. SIIA is represented by Mitchell Silberberg & Knupp LLP and in-house counsel. WLF is represented by in-house counsel.

Allen and Nautilus are represented by Quinn Emanuel Urquhart & Sullivan LLP, Olive & Olive PA and Poe Law Firm PLLC.

The North Carolina state defendants are represented by the North Carolina Department of Justice.

The case is Allen v. Cooper, case number 18-877, in the Supreme Court of the United States.

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