Posts Tagged: "Allen v. Cooper"

On November 23, sportswriter Michael Bynum and his publishing label Epic Sports filed a motion for leave  to file a second amended complaint and a proposed second amended complaint in the Southern District of Texas. The filings seek to revive copyright infringement claims filed by Bynum against employees at Texas A&M University for their roles in unauthorized distributions of Bynum’s biography of E. King Gill, a former Texas A&M student who inspired the 12th Man tradition at Texas A&M, by adding several new defendants who were actually responsible for the unauthorized copying at issue in the case.

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.”

On November 15, Houston-area aerial photographer Jim Olive Photography filed a petition for writ of certiorari asking the U.S. Supreme Court to take up an appeal from the Texas Supreme Court, which had denied Olive’s copyright claims against the University of Houston System on sovereign immunity grounds. In the petition, Olive requests that the Supreme Court simply grant certiorari, vacate the lower decision and remand for reconsideration of the issues in light of the Court’s decision this summer in Cedar Point Nursery v. Hassid, which was issued just a few days after the Texas Supreme Court ruled against Olive.

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.

On August 31, at the request of Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT), the United States Patent and Trademark Office (USTPO) provided a report to Congress analyzing infringement disputes between patent and trademark rights holders and states and state entities. The U.S. Copyright Office produced a similar, much lengthier report, also in response to a letter from Tillis and Leahy, studying whether there is sufficient basis for federal legislation abrogating State sovereign immunity when States infringe copyrights. The Senators’ letters were prompted by the March 2020 Allen v. Cooper Supreme Court decision. While the USPTO report came to no conclusions, the Copyright Office found that “the evidence indicates that state infringement constitutes a legitimate concern for copyright owners.”

Last week, the Regulatory Transparency Project of the Federalist Society released a paper titled “Holding States Accountable for Copyright Piracy.” The paper was authored by Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen and noted that the U.S. Supreme Court has recognized that “copyright is the engine of free expression that supplies the economic incentive to create and disseminate ideas.” However, citing Allen v. Cooper, the paper explained that a recent Supreme Court decision has jeopardized the U.S. copyright system by “severely limiting” the ability of creators and copyright owners to hold states accountable for infringement by holding that states can escape accountability for intentional acts of infringement by invoking the doctrine of sovereign immunity. The paper further emphasized the injustice that Allen has brought forth, since current law allows states to claim the benefits of copyright protection for their own works and works transferred to them, while escaping liability when they infringe the copyrights of others. Solutions were proposed to level the playing field, including Congress enacting a law validly abrogating state sovereign immunity and waiving sovereign immunity for states acting as market participants.

On June 3, the U.S. Copyright Office published a Federal Register notice regarding a study it is initiating to “evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct.” The Office requested public input in the form of written comments on or before August 3, 2020 to assist the Office in preparing a report to Congress on the study.

Earlier this week, the Supreme Court handed down its ruling in Allen v. Cooper, which relates to photos and videos of the sunken remains of the Queen Anne’s Revenge, the centuries-old ship once captained by the famed pirate Blackbeard. The plaintiff in that case claimed that North Carolina unlawfully used his copyrighted works. Only two months earlier, the Trump Administration also faced a copyright infringement imbroglio. Following the official Twitter unveiling of the seal for the newly created U.S. Space Force, critics noted that the seal bore a striking similarity to that of Starfleet, the scientific and military force in the fictional universe of the television and film property, Star Trek. While some pointed to the (fairly far-fetched) trademark implications of the Space Force logo, many voices on the Internet also alleged that the government infringed on the copyright for the Starfleet seal. These two cases have brought the issues of copyright infringement and sovereign immunity into the spotlight. To resolve them, one must first look to the tenets of copyright law.

Blackbeard and his band of pirates pillaged and plundered up and down North Carolina’s Outer Banks more than 300 years ago, inspiring stories (both true and fictional) that capture imaginations to this day. On March 23, the battleground shifted from the watery landscape of Davy Jones’ Locker to the decidedly more law-abiding U.S. Supreme Court, where the justices unanimously ruled that North Carolina’s display of copyrighted footage showing recovery of the legendary pirate’s ship does not violate copyright law. The Supreme Court’s decision is a key victory for advocates who say sovereign immunity should shield states from copyright infringement suits by an individual.

The Supreme Court heard oral argument in Allen v. Cooper (Case No. 18-877) on Monday, November 5, 2019. Petitioner Allen claims that the State of North Carolina infringed his copyrights in images and video of the salvage of Blackbeard’s famed pirate ship. Relying on the Copyright Remedies Clarification Act (CRCA), Allen seeks monetary damages against the State. The State argues, and many lower courts have agreed, that the CRCA is unconstitutional and state sovereign immunity precludes Allen from recovering copyright infringement damages against the State.

This week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions on PTAB evidence admissibility and limitation in patent claim preamble; the Copyright Office says that its digital recordation pilot project is on track for Spring 2020; the PTAB Precedential Opinion Panel (POP) will review the Board’s rejection of substitute patent claims in a motion to amend; “This Is Spinal Tap” creators settle copyright suit; and T-Mobile announces December launch for nationwide 5G network.

Next week, the Supreme Court will hear the first of six IP cases granted cert last term. On Monday, the Court will hear Peter v. NantKwest, in which the question presented is “Whether the phrase ‘[a]ll the expenses of the proceedings’ in 35 U.S.C. 145 encompasses the personnel expenses the USPTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation.” The Court will heard other IP cases in November and December, while Google v. Oracle, Berkheimer v. HP, and Hikma v. Vanda await a decision on cert, and petitions in Straight Path IP Group, LLC v. Apple Inc., et al. and Athena Diagnostics v. Mayo Collaborative Services have the patent world holding its collective breath.

This week in Other Barks & Bites: The Federal Circuit has asked USPTO Director Andrei Iancu to brief the appellate court on deference that should be paid to precedential PTAB opinions; China announced that it will create a credit rating mechanism for patent agents; Russ Slifer Op-Ed revives 101 debate; the FCC will approve the proposed T-Mobile/Sprint merger; amicus briefs filed at the Supreme Court support the abrogation of state sovereign immunity against copyright claims; Nintendo ramps up copyright campaign against YouTube accounts using video game music; Guns N’ Roses settles trademark dispute over craft beer brand; and copyright troll entity Malibu Media faces investor lawsuit.

As we anxiously await a final decision from the U.S. Supreme Court in Iancu v. Brunetti, and decisions on pending petitions for certiorari in several other IP cases, the Court agreed to hear Allen v. Cooper on June 3. The case asks whether Congress acted appropriately in relying upon its powers under Article I of the U.S. Constitution to abrogate state sovereign immunity against federal copyright claims by passing the Copyright Remedy Clarification Act (CRCA) or if, as the Fourth Circuit held, Congress improperly abrogated state sovereign immunity by passing that law.