Epic Sports Petitions Fifth Circuit for Rehearing En Banc in Texas A&M ‘12th Man’ Copyright/ Takings Clause Case

On September 22, publishing company Canada Hockey L.L.C., doing business as Epic Sports, and Michael Bynum, a sportswriter and editor, filed a petition for rehearing en banc in their appeal of a copyright case against both Texas A&M University and a pair of school officials. In their petition, the plaintiffs argue that the original panel decision erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment for Texas A&M’s unlawful reproduction of the plaintiffs’ copyrighted work regarding the history of the legendary 12th Man at Texas A&M.

Porter’s Lack of Takings Clause Protections for Copyright Claims Was Overruled by Horne

The Fifth Circuit issued a decision on September 8 affirming the Southern District of Texas’ dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of Bynum’s manuscript on the nearly 100-year history of the famed 12th Man tradition at Texas A&M. The Southern Texas ruling followed the U.S. Supreme Court’s March 2020 decision in Allen v. Cooper, which declared that Congress’ abrogation of state sovereign immunity under the Copyright Remedy Clarification Act was unconstitutional. In affirming the district court’s ruling, the Fifth Circuit panel found that there was no violation of due process under the 14th Amendment, allowing the appellate court to apply the reasoning of the Supreme Court’s 2006 decision in U.S. v. Georgia. In that case, the Court found that private remedies under law against state actors exist only when the state action constitutes a violation of the 14th Amendment.

In their petition for rehearing, the plaintiffs pose a pair of questions they would like answered by the full Fifth Circuit:

• Are copyrights protected by the Takings Clause of the United States Constitution?
• Can the possibility that a state court may – at some point in the future – recognize a Takings remedy under the state’s constitution serve as an adequate post-deprivation remedy, barring a claim for deprivation of property without due process of law?

The Fifth Circuit panel found itself bound by its precedent from Porter v. United States (1973), in which the court dismissed a Takings Clause challenge brought by the widow of Lee Harvey Oswald over republication of Oswald’s writings in the Warren Commission Report, in determining that copyright was not a form of property protected by the Takings Clause. The plaintiffs, however, argued that the Supreme Court’s 2015 decision in Horne v. Department of Agriculture reaffirmed the prospect that personal property, which includes copyrights, must be compensated by the government if subject to a taking. Bynum and Epic Sports noted that the Court in Horne relied in part upon an 1882 Supreme Court decision in James v. Campbell, which reiterated that intellectual property was personal property that is subject to proper compensation for a government taking.

Even if Porter was correct when originally decided (a doubtful proposition in light of James v. Campbell and its progeny), nearly forty years have passed since the Supreme Court held that trade secrets and ‘other kinds of intangible interests’ are ‘protected by the Takings Clause.’…  Now that Horne has confirmed that the Takings Clause ‘protects “private property” without any distinction between different types,… the Court should reconsider Porter’s holding and align itself with nearly 140 years of Supreme Court guidance on this issue.

Ending the Fifth Circuit’s reliance on Porter would also help to solve a circuit split that has developed on the question of copyright’s status as property for purposes of the Takings Clause. In a footnote in the original panel decision, the appellate court recognized that Porter’s holding creates tension with decisions of the First Circuit and Second Circuit, both of which have found that the Takings Clause extends to claims that government actions have infringed upon copyright.

Appellants: No ‘Clear and Certain’ Post-Deprivation Remedy Existed to Cure Due Process Violation

Bynum and Epic Sports’ petition for rehearing also pushes back on the Fifth Circuit’s conclusion that meaningful post-deprivation remedies existed under the Texas Constitution, thus avoiding a due process violation under the Fourteenth Amendment. The Fifth Circuit had determined that such a remedy existed under the Texas Supreme Court’s recent decision in Jim Olive Photography v. University of Houston (2021). That case, however, rejected Takings Clause claims under both the federal and state constitutions. “Appellants are aware of no cases in this circuit or elsewhere holding that a legal theory that has never been recognized by the state courts can nonetheless bar a procedural due process claim,” Bynum and Epic Sports’ petition reads. Such a ruling arguably flies in the face of the Supreme Court’s 1995 holding in National Private Truck Council v. Oklahoma Tax Commission, in which the Court found that a “clear and certain remedy” under state law must first exist before it can be considered a remedy that satisfies due process under the Fourteenth Amendment.

In Jim Olive, the Texas Supreme Court noted that the state’s takings clause is comparable to the Constitution’s language in the Fifth Amendment. According to Bynum and Epic Sports, this finding offers no support for the Fifth Circuit’s conclusion that a takings remedy exists under the Texas Constitution without a comparable remedy under the Fifth Amendment. This argument is bolstered by the fact that Jim Olive involved takings claims under the Texas and U.S. constitutions, and the Texas Supreme Court treated those claims analogously.

A concurrence in Jim Olive hypothesized that claims under Texas constitution for copyright infringement might be available under provisions governing property “applied for public use” or “damaged for public use” rather than claims for regulatory takings. However, “[t]hese speculations about what potential remedies might be available cannot satisfy Due Process,” Bynum and Epic Sports argued. Cases in which a post-deprivation remedy has been upheld as satisfying due process under the Fourteenth Amendment have all involved remedies that are generally uncontested and well-established.

“Appellants have found no decisions rejecting a due process claim on the basis of a potential state-law remedy that no court has affirmatively recognized,” Bynum and Epic Sports argued. While the Fifth Circuit had relied on language from its 2009 decision in McClure v. Biesenbach to find that post-deprivation remedies are adequate “if it allows the prospect of compensation for the loss suffered,” Bynum and Epic Sports pointed out that Parratt v. Taylor (1981), which the Fifth Circuit cited for the proposition made in McClure, indicated that state remedies had to be in existence at the time of the deprivation and capable of fully compensating the property owner for his loss. The petition concludes:

It is, of course, too late for Appellants to pursue a Takings remedy under the Texas constitution. And it is hardly reasonable to tell Appellants that they should have sought these never-before-recognized remedies in state court rather than filing their claims in federal court. A requirement that federal plaintiffs guess correctly about what remedies a state court might someday recognize—at the hazard of losing their federal claims—is the antithesis of due process of law.

On September 24, the Fifth Circuit requested a response to the petition for rehearing en banc from the Texas Attorney General by October 4.

Image source: Deposit Photos
Author: AndreyPopov
Image ID: 211210396