Blackbeard went unmentioned in Tuesday’s arguments in Allen v. Cooper. But the justices plundered North Carolina’s argument that it enjoyed sovereign immunity from suit for damages for copyright infringement.
Representing petitioner Frederick Allen, who sued North Carolina for infringing his copyrights in photographs and videos documenting the salvage of artifacts from Blackbeard’s sunken flagship, Derek Shaffer used his two-minute opening to argue that when “states infringe the exclusive rights that Congress is charged with securing, Congress can make states pay for doing so.” The intellectual property clause of Article I Section 8 of the Constitution provides an “express constitutional mandate for Congress to protect specified private property rights against any and all intrusion,” thus “securing” exclusive rights against “all comers, exclusive against the world, including the government and including states.” Congress can fulfill that mandate only by abrogating sovereign immunity by statute and subjecting states to suit for their infringing conduct.
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North Carolina Deputy Solicitor General Ryan Park argued on behalf of the state. Park maintained that the Constitution preserves state sovereignty unless there is “compelling evidence that the states surrendered it when they ratified a particular constitutional provision.” Allen failed to identify any historical evidence that anyone at the founding contemplated damages lawsuits against states for copyright infringement. According to Park, state sovereign immunity limits congressional authority to expose state treasuries both to expansive liability going far beyond the due process clause and to the Copyright Remedy Clarification Act’s “exorbitant” financial remedies of up to $150,000 per infringement.
Kavanaugh and Justice Stephen Breyer questioned Park about the possibility of multiple, rampant state uses of copyrights for which the authors receive nothing, which cannot be squared with a grant of exclusive rights. Park argued that the ordinary remedy for a state violation is an injunction, which Breyer said does nothing for an infringement that occurred yesterday. Park responded that a plaintiff can bring a direct constitutional claim for truly intentional or deliberate infringement for which no alternative remedy is available—because the copyright violation would constitute a due process violation, the statutory remedy would be congruent and proportional as applied to that case. Ginsburg suggested that this case “sounds pretty intentional to me”—North Carolina was alleged to have infringed, potential litigation was settled, then North Carolina resumed identical infringing conduct. Park argued that the case involves not infringement or a copyright violation, but a dispute over the scope of the license petitioners granted to the state in the settlement and a possible breach-of-contract lawsuit.
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Ginsburg suggested that there is “something unseemly” about a state’s being able to hold copyrights and sue for infringement of their copyrights but also to say, “we can infringe to our heart’s content and be immune from any compensatory damages.” She asked whether Congress could condition states’ copyright privileges on their agreeing to be subject to suit for infringement. Park said this would create an unconstitutional condition, although he agreed that Congress could remove the anomaly by denying states the right to hold copyrights.
Link to the rest at SCOTUSblog