“Neither [Texas A&M] nor the Fifth Circuit can explain how sovereign immunity can co-exist with a constitutional mandate that states pay compensation when they take.”- Bynum reply brief
The petitioner in a case challenging the U.S. Court of Appeals for the Fifth Circuit’s ruling that affirmed a Texas court’s dismissal of copyright claims over Texas A&M’s unauthorized reproduction of portions of his manuscript filed a reply brief Monday, arguing that the opposition provides “no escape hatch… for states’ particularly egregious intellectual property violations.” Michael Bynum, a sports writer and editor, and publishing company Canada Hockey L.L.C., doing business as Epic Sports, said that the Texas Attorney General’s August 19 brief in opposition was “bristling with aggressive and controversial legal positions” and that the Fifth Circuit’s decision “undermines federal copyright protection from state predation.”
Fifth Circuit Ruling and Petition
In June, Bynum filed a petition with the High Court claiming that the Fifth Circuit’s decision leaves copyright holders “at the mercy of state infringers.” The petition argued that the Fifth Circuit’s ruling 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 erred in failing to find constitutional violations of both the Fifth Amendment’s Takings Clause and due process under the Fourteenth Amendment. The 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 (CRCA) was unconstitutional.
In affirming the district court’s ruling, the Fifth Circuit panel found that there was no violation of due process under the Fourteenth Amendment, allowing the appellate court to apply the reasoning of the Supreme Court’s 2006 decision in United States 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 Fourteenth Amendment and allowed for a case-by-case abrogation theory in cases where “a plaintiff can reasonably allege that there has been intentional copyright infringement and there are not adequate remedies.” But Bynum’s petition to the Supreme Court alleged that the Fifth Circuit’s decision “slammed Georgia’s window and nailed it shut” and that this case presents a perfect vehicle for reopening it.
In response, the Texas Attorney General said last month that the petitioners’ arguments are overblown and that the case is not a good vehicle for review because it does not have broad applicability and is not binding precedent, among other arguments. Far from making “sweeping rulings about constitutional protection for intellectual property and due-process standards that clash with decisions from this Court and other circuits, as petitioners contend…. the court correctly concluded that there was no taking on these facts and no due-process violation under this state law,” explained the opposition’s brief.
A ’Makeweight’ Argument
But in last week’s reply, Bynum and Canada Hockey said that Texas A&M’s claim that the Court cannot consider the scope of United States v. Georgia because the Fifth Circuit reserved judgment on whether the precedent extends to copyright infringement cases is a “makeweight argument.” First, review is not blocked by any “substantial antecedent question,” and, in any case, the Court is free to review issues addressed by the Court of Appeals while reserving judgment about Georgia’s scope. “Petitioners’ questions concerning the scope of takings protection for copyrights and the certainty of state remedies necessary to defeat a procedural due process claims remain certworthy in their own right,” said the reply brief.
The brief also rejected Texas A&M’s suggestion that review is not warranted because the Fifth Circuit’s decision was unpublished and therefore not precedent. The Fifth Circuit instead invoked its precedent in Porter v. United States, 473 F.2d 1329, 1337 (5th Cir. 1973) to hold that “infringement is not a ‘taking’ as the term is constitutionally understood. Rather, it has always
been held that infringement of copyright, whether common law . . . or statutory . . . constitutes a tort.” Porter is the binding precedent “undermining constitutional protection for federal intellectual property rights,” said Bynum’s brief, and to argue that the present case is a poor vehicle to reject Porter because the Fifth Circuit’s opinion was unpublished “makes no sense,” it added. Ultimately, the Fifth Circuit relied on Porter’s rule that copyright infringements are not takings and that conflicts with Supreme Court precedent and that of other circuits. All of Texas A&M’s arguments dismissing these other holdings as inapplicable to copyright, dictum, or equivocal “simply underscores present uncertainty as to constitutional protection for intellectual property,” the reply brief noted.
The brief further claimed that Texas A&M’s denial that states must provide a “clear and certain” remedy to satisfy procedural due process is legal error. All of the precedent in this area stems from tax cases, but Texas A&M “offers no explanation for why the ‘clear and certain’ standard for a post-deprivation remedy should vary from one procedural due process context to another,” said the brief, and the state remedy Texas A&M suggests is available to the petitioners is a “hypothetical” one that has never been recognized by any state court. Texas A&M argued that the Texas state constitution’s Takings Clause is more expansive than the federal one and that Jim Olive Photography v. Univ. of Houston Sys., 624 S.W.3d 764, 771 (Tex. 2021) only addressed per se takings, leaving the door open to remedies for other types of takings. But Bynum’s reply pointed to the Texas Supreme Court’s statements that “[a]lthough our state takings provision is worded differently,” it is “comparable” to the federal one and
“Texas case law on takings under the Texas Constitution is consistent with federal jurisprudence.” Additionally, there is no reason to believe that another takings theory would be easier for the petitioners to establish and Olive seems to follow the Fifth Circuit’s reasoning in this case.
Circuit Courts are Falling Into Line
Finally, Bynum argued that Texas A&M’s contention that Knick v. Township of Scott, 139 S. Ct. 2162 (2019) did not address sovereign immunity is immaterial because “neither [Texas A&M] nor the Fifth Circuit can explain how sovereign immunity can co-exist with a constitutional mandate that states pay compensation when they take.” The respondent’s argument that federal law simply provides no remedy for state takings would have barred jurisdiction in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and “would unsettle property rights across the board and invite opportunistic behavior by state entities,” said the brief. Ultimately, Knick demonstrates “[a] ‘full-fledged’ vindication of takings rights thus requires that sovereign immunity give way, as this Court acknowledged in First English, 482 U.S. at 316 n.9.” Circuit courts have turned sovereign immunity into a “state-court-first” requirement, which was rejected in Knick, and thus “[e]ven if this Court views that regime as permissible, Petitioners have identified a certworthy question concerning whether immunity persists when state remedies are hypothetical rather than already established and available.”
Bynum urged the Court to accept the petition despite its denials of previous petitions challenging state immunity in takings cases, explaining that circuit courts are “falling into line” on how to approach the question raised rather than debating it. The reply concluded:
“And as Texas’s radical arguments here demonstrate, states are more and more emboldened to expropriate property with impunity. This case squarely presents the question whether the Takings Clause mandates a compensatory remedy notwithstanding state immunity, and this Court should buttress the certainty of property rights by answering it.”
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