No. 18-877
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`Petitioners,
`
`
`IN THE
`Supreme Court of the United States
`___________
`
`FREDERICK L. ALLEN and
`NAUTILUS PRODUCTIONS, LLC,
`
`
`v.
`
`ROY A. COOPER, III,
`as Governor of North Carolina, et al.,
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`
`
`Respondents.
`
`___________
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Fourth Circuit
`___________
`BRIEF OF WASHINGTON LEGAL FOUNDATION
`AS AMICUS CURIAE IN SUPPORT OF PETITIONERS
`
`___________
`CORY L. ANDREWS
` Counsel of Record
`CORBIN K. BARTHOLD
`WASHINGTON LEGAL
` FOUNDATION
`2009 Massachusetts Ave., NW
`Washington, DC 20036
`(202) 588-0302
`candrews@wlf.org
`
`
`
`
`
`
`
`
`
`
`August 13, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Petitioners,
`
`
`IN THE
`Supreme Court of the United States
`___________
`
`FREDERICK L. ALLEN and
`NAUTILUS PRODUCTIONS, LLC,
`
`
`v.
`
`ROY A. COOPER, III,
`as Governor of North Carolina, et al.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respondents.
`
`___________
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Fourth Circuit
`___________
`BRIEF OF WASHINGTON LEGAL FOUNDATION
`AS AMICUS CURIAE IN SUPPORT OF PETITIONERS
`
`___________
`CORY L. ANDREWS
` Counsel of Record
`CORBIN K. BARTHOLD
`WASHINGTON LEGAL
` FOUNDATION
`2009 Massachusetts Ave., NW
`Washington, DC 20036
`(202) 588-0302
`candrews@wlf.org
`
`
`
`
`
`
`
`
`
`
`August 13, 2019
`
`
`
`
`
`
`
`
`QUESTION PRESENTED
`Whether Congress validly abrogated state
`
`sovereign immunity by enacting the Copyright Rem-
`edy Clarification Act, Pub. L. No. 101-553, 104 Stat.
`2749 (1990), which provides remedies to copyright
`owners when States infringe their federal copy-
`rights.
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES ................................... iv
`
`INTEREST OF AMICUS CURIAE ......................... 1
`
`STATEMENT OF THE CASE ................................. 2
`
`SUMMARY OF ARGUMENT .................................. 4
`
`ARGUMENT ............................................................ 7
`
`
`
`THE STATES WAIVED IMMUNITY FOR
`COPYRIGHT INFRINGEMENT IN THE PLAN
`OF THE CONVENTION ....................................... 7
`
`
`CONCLUSION ....................................................... 17
`
`A.
`
`
`B.
`
`Katz Recognizes That the States
`Waived Sovereign Immunity by
`Ratifying Certain Unique Grants
`of Power to Congress under Arti-
`cle I of the Constitution ...................... 7
`
`The Unique Text, History, and
`Importance of
`the Copyright
`Clause Confirm That the States
`Waived Sovereign Immunity for
`Copyright Infringement .................. 11
`
`
`
`
`
`
`
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`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases:
`
`Alden v. Maine,
` 527 U.S. 706 (1999) ................................... 7, 10, 11
`
`Am. Broad. Cos., Inc. v. Aereo, Inc.,
` 573 U.S. 431 (2014). .............................................. 1
`
`Burrow-Giles Lithographic Co. v. Sarony,
` 111 U.S. 53 (1884) ............................................... 14
`
`Cent. Va. Cmty. Coll. v. Katz,
` 546 U.S. 356 (2006) ......................................passim
`
`Feltner v. Columbia Pictures Television, Inc.,
` 523 U.S. 340 (1998) ....................................... 13, 14
`
`Fla. Prepaid Postsecondary Educ. Expense Bd.
` v. Coll. Sav. Bank, 527 U.S. 627 (1999) ........... 4, 8
`
`Fourth Estate Pub. Benefit Corp. v.
` Wall-Street.com, LLC, 139 S. Ct. 881 (2019) ........ 1
`
`Golan v. Holder,
` 565 U.S. 302 (2012) ............................................ 14
`
`Goldstein v. California,
` 412 U.S. 546 (1973) ............................................. 15
`
`Harper & Row Publishers, Inc. v. Nation Enters.,
` 461 U.S. 539 (1985) ............................................... 1
`
`
`
`
`
`
`
`
`
`
`
` v
`
`
`
`Page(s)
`
`Monaco v. Mississippi,
` 292 U.S. 313 (1934) ............................................... 7
`
`Murphy v. NCAA,
` 138 S. Ct. 1461 (2018) ......................................... 15
`
`Pennsylvania v. Union Gas Co.,
` 491 U.S. 1 (1989) ............................................... 7, 8
`
`Seminole Tribe of Fla. v. Florida,
` 517 U.S. 44 (1996) ......................................... 4, 8, 9
`
`Terminiello v. City of Chicago,
` 337 U.S. 1 (1949) ................................................. 16
`
`Constitution and Statutes:
`
`U.S. Const., Art. I, § 8, cl. 4 ..................................... 9
`
`U.S. Const., Art. I, § 8, cl. 8 ........................... 5, 9, 13
`
`17 U.S. § 301 ....................................................... 5, 15
`
`28 U.S.C. § 1338(a) ............................................. 5, 14
`
`28 U.S.C. § 1498 ..................................................... 15
`
`Act of Feb. 15, 1819, 3 Stat. 481 (1819) ................. 15
`
`Act of May 31, 1790, 1 Stat. 124 (1790) ............ 5, 13
`
`Copyright Remedy Clarification Act of 1990,
` Pub. L. No. 101-553, 104 Stat. 2749 (1990)...... 3, 6
`
`
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`
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`
`
`
`
`vi
`
`Page(s)
`N.C. Gen. Stat. § 121-25(b) ...................................... 3
`
`Miscellaneous:
`
`Amy B. Cohen, “Arising under” Jurisdiction & the
` Copyright Laws, 44 Hastings L. J. 337 (1993) ... 14
`
`Irah Donner, The Copyright Clause of the U.S.
` Constitution: Why Did the Framers Include It
` With Unanimous Approval?, 36 Am. J. Legal
` Hist. 361 (1992) ............................................. 12, 13
`
`The Federalist No. 43 ................................... 5, 11, 12
`
`Beryl R. Jones, Copyrights and State Liability,
` 76 Iowa L. Rev. 701 (1991) .................................. 12
`
`Angus Konstam, Blackbeard: America’s Most
` Notorious Pirate (2006) ......................................... 2
`
`Melville B. Nimmer & David Nimmer,
` Nimmer on Copyright (Matthew Bender
` rev. ed. 2018) ................................................. 12, 13
`
`Joseph Story, Commentaries on the Constitution
` of the United States (Boston, Hilliard, Gray
` & Co. 1833) .......................................................... 12
`
`Edward C. Walterscheid, To Promote the Progress
` of Useful Arts: American Patent Law &
` Administration, 1787-1836 (1998) ...................... 11
`
`Richard Weaver, Ideas Have Consequences
` (1948) ..................................................................... 4
`
`
`
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`
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`
` 1
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`
`
`INTEREST OF AMICUS CURIAE*
`
`
`Washington Legal Foundation (WLF) is a
`nonprofit, public-interest law firm and policy center
`with supporters nationwide. WLF promotes and de-
`fends free enterprise, individual rights, limited gov-
`ernment, and the rule of law. It often appears as
`amicus curiae in important copyright cases. See, e.g.,
`Fourth Estate Pub. Benefit Corp. v. Wall-Street.com,
`LLC, 139 S. Ct. 881 (2019); Am. Broad. Cos., Inc. v.
`Aereo, Inc., 573 U.S. 431 (2014).
`
`“By establishing a marketable right to the use
`
`of one’s expression, copyright supplies the economic
`incentive to create and disseminate ideas.” Harper &
`Row Publishers, Inc. v. Nation Enters., 461 U.S. 539,
`558 (1985). The Framers explicitly provided, there-
`fore, for a federal regime of robust copyright protec-
`tion, to foster and reward the creative genius that
`sustains a flourishing free market.
`
`
`As with all forms of private property, the right
`to one’s own creative works is only as strong as the
`ability to enforce that right against the world. The
`decision below thus highlights a growing problem in
`copyright enforcement. States increasingly claim the
`right to infringe copyrights with impunity, relying on
`this Court’s erratic sovereign immunity jurispru-
`dence to avoid all accountability. Such flouting of
`copyrights does violence to the Framer’s design.
`
`
`* No party’s counsel authored any part of this brief. No
`person or entity, other than WLF and its counsel, helped pay
`for the preparation or submission of this brief. All parties have
`granted blanket consents to amicus briefs under Rule 37.2(a).
`
`
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`
` 2
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`
`
`STATEMENT OF THE CASE
`
`A “tall, spare man with a very black beard
`which he wore very long,” Edward Teach is better
`known to history as Blackbeard. Angus Konstam,
`Blackbeard: America’s Most Notorious Pirate 91
`(2006). Though “his career as an independent pirate
`captain lasted less than a year and a half,” Teach’s
`actions “shook the very foundations of British rule in
`colonial America.” Id. at viii. In 1717, he captured a
`26-gun French merchant vessel, boosted its arma-
`ment to 40 guns, and renamed it the Queen Anne’s
`Revenge. Id. at 87. It would serve as the flagship of a
`pirate fleet comprising four vessels and over 200
`men until May 1718, when it foundered at Beaufort
`Inlet near North Carolina’s Outer Banks.
`
`The Revenge lay undisturbed on the mid-
`Atlantic seabed for nearly three centuries. In No-
`vember 1996, the private salvage-recovery firm In-
`tersal discovered the shipwreck. Pet. App. 6a-7a. In-
`tersal hired petitioners Frederick Allen and his com-
`pany, Nautilus Productions, LLC, to film and photo-
`graph the ship’s salvage. Id. at 7a-8a. Over the next
`two decades, petitioners created “a substantial ar-
`chive of video and still images” documenting both
`“the underwater shipwreck and the efforts of teams
`of divers and archaeologists to recover various arti-
`facts” from it. Id. at 9a.
`
`Allen registered his works with the U.S. Cop-
`yright Office and licensed them to Nautilus for com-
`mercial use. Pet. App. 9a. In 2013, petitioners dis-
`covered that the State of North Carolina and its offi-
`cials had infringed petitioners’ copyrights by upload-
`ing the works and posting them online without per-
`
`
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` 3
`
`
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`mission. Id. at 9a, 43a. In October 2013, North Caro-
`lina and its officials entered into a settlement
`agreement with Nautilus. Id. at 43a. Besides paying
`Nautilus $15,000 for specific instances of prior in-
`fringement, respondents promised not to infringe
`Nautilus’s works in the future. Ibid.
`
`
`While at first they stopped all infringement of
`Nautilus’s works, respondents soon resumed infring-
`ing—both in print and online. Pet. App. 12a, 44a.
`North Carolina then tried to insulate itself from cop-
`yright liability by enacting “Blackbeard’s Law,” N.C.
`Gen. Stat. § 121-25(b), a law designating all “photo-
`graphs, video recordings, and other documentary
`materials” of shipwrecks in the State’s custody as
`“public records.” Id. at 44a.
`
`Petitioners sued respondents for copyright in-
`fringement in the U.S. District Court for the Eastern
`District of North Carolina. Pet. App. 13a, 45a. Mov-
`ing to dismiss the complaint, respondents claimed
`immunity from suit under the Eleventh Amendment.
`Ibid. The district court refused to dismiss petition-
`ers’ copyright infringement claim. Id. at 64a-65a.
`The court found that Congress—when it enacted the
`Copyright Remedy Clarification Act of 1990 (CRCA),
`Pub. L. No. 101-553, 104 Stat. 2749 (1990)—validly
`abrogated state sovereign immunity in such cases.
`The CRCA strips “any State,” its “officers,” or its
`“employees” of Eleventh Amendment immunity for
`copyright infringement. Ibid.
`
`The Fourth Circuit reversed. Pet. App. 30a-
`31a. The panel held that even if the CRCA were oth-
`erwise clear in purpose, Congress’s reliance on Arti-
`cle I’s Copyright Clause was an inadequate basis for
`
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` 4
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`
`
`abrogating Eleventh Amendment immunity under
`Seminole Tribe of Florida. v. Florida, 517 U.S. 44
`(1996). Id. at 18a. Nor, the appeals court held, had
`Congress validly enacted the CRCA under its § 5 au-
`thority in the Fourteenth Amendment. Id. at 20a-
`21a. Congress, the court determined, had not made
`it clear enough that it was relying on § 5 of the Four-
`teenth Amendment as the source of its authority.
`And Congress failed to ensure that its abrogation of
`immunity was “congruent and proportional” to any
`Fourteenth Amendment injury. Ibid. (quoting Fla.
`Prepaid Postsecondary Educ. Expense Bd. v. Coll.
`Sav. Bank, 527 U.S. 627, 639-42 (1999)).
`
`
`SUMMARY OF ARGUMENT
`
`Richard M. Weaver famously called private
`property “the last metaphysical right.” Richard
`Weaver, Ideas Have Consequences 131 (1948). By
`this he meant that private property has intrinsic
`value apart from its social utility; it is bound up with
`notions of responsibility, hard work, and identity.
`Ibid. In short, one’s private property is an extension
`of oneself. Perhaps nowhere is Weaver’s observation
`truer than in the area of copyright, which secures
`exclusive ownership of one’s original works of art
`and expression.
`
`No uniform copyright law existed before the
`nation’s founding. The Articles of Confederation
`made no provision for copyrights. And while twelve
`of the original thirteen States had their own copy-
`right laws at the time of the Constitutional Conven-
`tion in 1787, state-by-state copyright enforcement
`was both cumbersome and inconsistent. On the eve
`of the Convention, the States widely recognized the
`
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`
` 5
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`
`
`dire need for a uniform federal regime to encourage
`and protect the authors of creative works. “The utili-
`ty of this power will scarcely be questioned,” James
`Madison predicted. The Federalist No. 43. He was
`right.
`
`
`The Framers inserted a copyright clause into
`the Constitution itself. See U.S. Const., Art. I, § 8, cl.
`8. The Copyright Clause was one of the few enumer-
`ated powers of Congress included in the Constitu-
`tion. It explicitly gives Congress the power to “se-
`cur[e] for limited Times to Authors * * * the exclu-
`sive Right to their respective Writings.” Ibid. While
`this language accomplished a marked shift in au-
`thority over copyrights from the States to the federal
`government, the Constitutional Convention adopted
`it by unanimous vote, with no recorded debate.
`
`The First Congress soon implemented the
`Copyright Clause’s grant of authority. The Copyright
`Act of 1790, which granted American authors the ex-
`clusive right to their works for fourteen years, au-
`thorized an award of statutory damages for copy-
`right infringement. See Act of May 31, 1790, ch. 15,
`§§ 2, 6, 1 Stat. 124, 125 (1790). The law provided no
`carve-out for State infringers or their agents. Id.
`Later, under 28 U.S.C. § 1338(a), Congress gave fed-
`eral courts exclusive jurisdiction over copyright-
`infringement suits. And Congress has since occupied
`the field, preempting all state laws—common law or
`statutory—affecting copyright. 17 U.S. § 301.
`
`Congress once again used its plenary authori-
`ty over copyrights—authority ceded by the States at
`the Convention—when it enacted the CRCA in 1990.
`See Pub. L. No. 101-553, 104 Stat. 2749 (1990). The
`
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` 6
`
`
`
`CRCA strips “any State,” its “officers,” or its “em-
`ployees” of Eleventh Amendment immunity for copy-
`right infringement. Ibid. Duly enacted, the CRCA is
`fully binding, under the Supremacy Clause, on North
`Carolina and its agents. The Fourth Circuit erred in
`refusing to enforce it.
`
`While petitioners make a compelling case that
`Congress, by enacting the CRCA, lawfully abrogated
`the States’ sovereign immunity under § 5 of the
`Fourteenth Amendment, this brief argues that the
`CRCA was unnecessary to authorize federal court
`jurisdiction over
`copyright
`infringement suits
`against the States. That is because the States con-
`sented to such suits in the “plan of the Convention.”
`See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 377
`(2006). Indeed, the history of the Copyright Clause,
`the reasons the Framers inserted it into the Consti-
`tution, and the laws enacted under its auspices just
`after ratification confirm that it was not only an Ar-
`ticle I grant of authority to Congress but also a way
`to subordinate state sovereign immunity in copy-
`right enforcement suits.
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` 7
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`
`
`ARGUMENT
`
`THE STATES WAIVED IMMUNITY FOR COPY-
`RIGHT INFRINGEMENT IN THE PLAN OF THE
`CONVENTION.
`
`
`
`
`
`State sovereign immunity “derives not from
`the Eleventh Amendment but from the structure of
`the original Constitution itself.” Alden v. Maine, 527
`U.S. 706, 728 (1999). This Court has recognized that
`the States enjoy no sovereign immunity where there
`was “a surrender of this immunity in the plan of the
`convention.” Monaco v. Mississippi, 292 U.S. 313,
`322-23 (1934). Because the Copyright Clause trans-
`ferred the power to “secure” copyrights from the
`States to Congress, and because that power would be
`impotent without the ability to hold State actors lia-
`ble for copyright infringement, the States relin-
`quished their immunity from copyright infringement
`suits when they ratified the Copyright Clause in the
`plan of the Convention.
`
`
`A.
`
`Katz Recognizes That the States
`Waived Sovereign Immunity by
`Ratifying Certain Unique Grants of
`Power to Congress under Article I
`of the Constitution.
`
`This Court’s modern sovereign-immunity ju-
`risprudence has followed a circuitous path. In Penn-
`sylvania v. Union Gas Co., 491 U.S. 1 (1989), a plu-
`rality of the Court held that Congress may, by stat-
`ute, authorize suits against the States under Article
`I—so long as it does so explicitly. And five justices
`agreed that Congress, when it enacted the Compre-
`hensive Environmental Response, Compensation,
`
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` 8
`
`
`
`and Liability Act of 1980, authorized cleanup suits
`against the States in federal court. 491 U.S. at 19.
`
`Seven years later, in Seminole Tribe, the
`Court explicitly overturned Union Gas for allowing
`“no principled distinction” between laws enacted un-
`der “the Indian Commerce Clause and the Interstate
`Commerce Clause.” 517 U.S. at 63. Seminole Tribe
`involved an action under the Indian Gaming Regula-
`tory Act, which authorized suits against States that
`refused to negotiate compacts with Indian tribes to
`allow gaming on Native American lands. 517 U.S. at
`47.
`
`
`Explaining that “the Eleventh Amendment re-
`stricts the judicial power under Article III,” the
`Court invalidated the statute. Id. at 72-73. The
`Court went even further to say that Article I “cannot
`be used to circumvent the constitutional limitations
`placed upon federal jurisdiction.” Id. at 73. At bot-
`tom, Seminole Tribe strongly implied that only § 5 of
`the Fourteenth Amendment permits Congress to ab-
`rogate the States’ sovereign immunity from suit un-
`der the Eleventh Amendment. Id. at 59.
`
`In Florida Prepaid Postsecondary Education
`Expense Board v. College Savings Bank, the Court
`considered whether the Patent Remedy Act abrogat-
`ed, under § 5 of the Fourteenth Amendment, state
`sovereign immunity for patent-infringement claims
`in federal court. 527 U.S. at 627. Because the stat-
`ute’s “basic aims were to provide a uniform remedy
`for patent infringement and to place States on the
`same footing as private parties under that regime,”
`it was not a legitimate “effort to remedy or to pre-
`
`
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` 9
`
`
`
`vent unconstitutional state action” under § 5 of the
`Fourteenth Amendment. Id. at 647-48.
`
`The Court did not decide—and no party
`briefed or argued—whether the States relinquished
`immunity from patent-infringement suits when they
`ratified the Patent Clause in the plan of the Conven-
`tion. Even so, because the parties did not “contend
`otherwise,” the Court volunteered that “after Semi-
`nole Tribe,” Article I “does not give Congress the
`power to enact such legislation.” Id. at 636, 648.
`
`But in Central Virginia Community College v.
`Katz, the Court held that neither the Eleventh
`Amendment nor sovereign
`immunity
`insulates
`States from certain bankruptcy proceedings author-
`ized under Article I. Katz involved a suit by a bank-
`ruptcy trustee to set aside preferential transfers to
`state agencies. 546 U.S. at 356. Though acknowledg-
`ing that Seminole Tribe “reflected an assumption”
`that Article I provides no basis for overcoming state
`sovereign immunity, the Court dismissed that “dic-
`ta” as “erroneous.” Id. at 363.
`
`To be sure, Katz did not decide whether Con-
`gress had validly “abrogated” the States’ immunity
`in bankruptcy proceedings under Section 5 of the
`Fourteenth Amendment. Id. at 379. Rather, Katz
`held that “Congress’s determination that States
`should be amenable to such proceedings is within
`the scope of its power to enact ‘Laws on the subject of
`Bankruptcies’” under Article I of the Constitution.
`Id. at 379 (quoting U.S. Const. art. I, § 8, cl. 4).
`
`Katz reasoned that the Framers, by ratifying
`the Bankruptcy Clause in Article I, § 8, meant to
`
`
`
`
`
`
`
`
`
`
`10
`
`override considerations of sovereign immunity. The
`“States agreed in the plan of the Convention not to
`assert any sovereign immunity defense they might
`have had in proceedings brought” under bankruptcy.
`Id. at 377. Under this analysis, the only “relevant
`‘abrogation’ is the one effected in the plan of the
`Convention, not by statute.” Id. at 379.
`
`
`Katz emphasized three attributes of the Bank-
`ruptcy Clause signaling that the States waived im-
`munity from bankruptcy proceedings in the plan of
`the Convention. First, the Framers recognized a
`strong need for uniformity, as the States’ disparate
`bankruptcy laws had yielded inconsistent enforce-
`ment of discharge rights. Id. at 366-69. Second, Con-
`gress soon implemented the Bankruptcy Clause’s
`grant of authority both by creating substantive fed-
`eral bankruptcy rights and by empowering federal
`courts to enforce those rights. Id. at 373-77. Third,
`the federal courts’ exercise of bankruptcy jurisdiction
`“does not implicate States’ sovereignty to nearly the
`same degree as other kinds of jurisdiction.” Id. at
`362. As we will see, each of these attributes inheres
`equally in the Copyright Clause.
`
`
`* * *
`Even before Katz, this Court insisted that
`state sovereign immunity “does not confer upon the
`State a concomitant right to disregard the Constitu-
`tion or valid federal law.” Alden, 527 U.S. at 754-55.
`Above all, the “States and their officers are bound by
`obligations imposed by the Constitution and by fed-
`eral statutes that comport with the constitutional
`design.” Id. at 755. Despite this Court’s assurance
`that no sovereign State would “refuse to honor the
`Constitution or obey the binding laws of the United
`
`
`
`
`
`
`
`
`
`
`11
`
`States,” that is precisely what North Carolina and
`other States have done with federal copyright law.
`Ibid. Yet if U.S. copyrights are to have any vitality
`going forward, this Court can no longer avoid the
`troubling implications of some of its harsher sover-
`eign-immunity precedents.
`
`
`B.
`
`The Unique Text, History, and Im-
`portance of the Copyright Clause
`Confirm That the States Waived
`Sovereign Immunity for Copyright
`Infringement.
`
`
`Like the Bankruptcy Clause, the Copyright
`Clause has its own unique history worthy of
`“[c]areful study and reflection.” Cf. Katz, 546 U.S. at
`363. While the Framers considered other ways to
`protect intellectual property, they ultimately decided
`on patents and copyrights. See Edward C. Walter-
`scheid, To Promote the Progress of Useful Arts: Amer-
`ican Patent Law & Administration, 1787-1836 35
`n.32 (1998). As James Madison predicted in The
`Federalist, “The utility of this power will scarcely be
`questioned.” The Federalist No. 43. It wasn’t.
`
`The Constitutional Convention adopted the
`Copyright Clause—introduced late in the proceed-
`ings—by unanimous vote, with no recorded debate.
`Walterscheid, supra, at 31. The “absence of extensive
`debate over the text * * * or its insertion indicates
`that there was a general agreement on the im-
`portance of authorizing a uniform federal response.”
`Cf. Katz, 546 U.S. at 369. Indeed, the need for uni-
`form copyright enforcement was widely recognized.
`
`
`
`
`
`
`
`
`
`
`
`12
`
`The Articles of Confederation had failed to
`provide for copyrights. See Irah Donner, The Copy-
`right Clause of the U.S. Constitution: Why Did the
`Framers Include It With Unanimous Approval?, 36
`Am. J. Legal Hist. 361, 361 (1992). Although “twelve
`of the thirteen states” had their own copyright laws,
`id. at 362, none exempted state actors from in-
`fringement liability. See 8 Nimmer on Copyright,
`App. 7(c). Yet “requiring an author to travel to each
`state was considered cumbersome and unaccepta-
`ble.” Donner, supra, at 362. Even worse, “the state
`statutes varied in procedural detail,” with some
`providing that copyright protection “would not be-
`come in force until all states had such laws, which
`never occurred.” Id. at 374. This cumbersome,
`patchwork approach to copyright protection left
`much to be desired.
`
`As Madison recognized, “The States cannot
`
`separately make effectual provision for either [copy-
`rights or patents], and most of them have anticipat-
`ed the decision of this point, by laws passed at the
`instance of Congress.” The Federalist No. 43. With-
`out a federal copyright regime, Joseph Story noted,
`authors “would be subjected to the varying laws and
`systems of the different states,” which would “impair
`and might even destroy the value of their rights.” Jo-
`seph Story, Commentaries on the Constitution of the
`United States § 558, at 402-03 (Boston, Hilliard,
`Gray & Co. 1833).
`
`
`Thus, “on the eve of the Constitutional Con-
`vention, the states were strongly in favor of securing
`authors’ copyright in their works,” but “there was
`dissatisfaction with the system of state copyright
`laws and the need for a national law was apparent.”
`
`
`
`
`
`
`
`
`
`
`13
`
`Donner, supra, at 374. So it was to Congress, and not
`to the States, that the Framers turned to accomplish
`this vital aim. In short, the Framers “envisioned a
`uniform national system in which state regulatory
`powers would be subservient.” Beryl R. Jones, Copy-
`rights and State Liability, 76 Iowa L. Rev. 701, 723
`(1991).
`
`The Constitution vests Congress with plenary
`authority over securing copyrights. U.S. Const.,
`Art. I, § 8, cl. 8. The Copyright Clause explicitly
`gives Congress the power to “secur[e] for limited
`Times to Authors * * * the exclusive Right to their
`respective Writings.” Ibid. This is the only original
`Article I power in the Constitution that includes a
`purpose behind it: “To promote the Progress of Sci-
`ence and useful Arts.” Ibid. Under this grant of au-
`thority, “Congress manifestly has the power either to
`grant complete exclusivity or no protection at all.” 1
`Nimmer on Copyright § 1.07. But, as this case shows,
`if States remain free to infringe copyrights, the Con-
`stitution’s mandate that Congress “secure” those
`rights would be meaningless.
`
`The First Congress wasted no time imple-
`menting the Copyright Clause’s grant of authority.
`The Copyright Act of 1790 granted American au-
`thors the exclusive right to their works for a period
`of fourteen years (renewable for another fourteen
`years). See Act of May 31, 1790, ch. 15, §§ 2, 6, 1
`Stat. 124, 125 (1790). It set statutory damages for
`infringement at “the sum of fifty cents for every
`sheet which shall be found in [the infringer’s] pos-
`session,” recoverable “by action of debt in any court
`of record in the United States.” Id. at § 2 (emphasis
`added); see also Feltner v. Columbia Pictures Televi-
`
`
`
`
`
`
`
`
`
`
`14
`
`sion, Inc., 523 U.S. 340, 349-51 (1998) (discussing
`history of statutory damages for copyright infringe-
`ment).
`
`This law, “enacted under [the Copyright
`Clause’s] auspices immediately following ratifica-
`tion,” shows that the “power granted to Congress by
`[that] Clause is a unitary concept rather than an
`amalgam of discrete segments.” Cf. Katz, 546 U.S. at
`370. The Copyright Clause “was intended not just as
`a grant of legislative authority to Congress, but also
`to authorize limited subordination of state sovereign
`immunity in the [Copyright] arena.” Id. at 362-63.
`The Framers recognized that state immunity from
`copyright would both undermine the goal of national
`uniformity for copyright protection and deter artists
`and writers from creating original works.
`
`This “construction placed upon the Constitu-
`tion by [the drafters of] the first copyright act of
`1790”—“men who were contemporary with [the Con-
`stitution’s] formation, many of whom were members
`of the convention which framed it”—is “entitled to
`very great weight.” Golan v. Holder, 565 U.S. 302,
`321 (2012) (quoting Burrow-Giles Lithographic Co. v.
`Sarony, 111 U.S. 53, 57 (1884)).
`
`Nor is that all. “Congress recognized a need
`for federal courts to decide matters of patent and
`copyright law long before it supported federal court
`interpretation of federal laws in general.” Amy B.
`Cohen, “Arising under” Jurisdiction and the Copy-
`right Laws, 44 Hastings L. J. 337, 351 (1993). In
`fact, Congress clarified that federal jurisdiction over
`the Copyright Act is both original and exclusive, en-
`suring the nationwide uniformity and consistency for
`
`
`
`
`
`
`
`
`
`
`15
`
`copyright litigation. See Act of Feb. 15, 1819, ch. 19,
`3 Stat. 481, 481 (1819); 28 U.S.C. § 1338(a).
`
`And Congress has since occupied the field,
`preempting all state laws (common law or statutory)
`affecting copyright. See 17 U.S. § 301 (preempting
`“all legal or equitable rights” that even “come within
`the subject matter of copyright as specified by sec-
`tions 102 and 103” of the Copyright Act). What’s
`more, the United States has specifically waived sov-
`ereign immunity for copyright infringement claims,
`so holding the States to account for copyright in-
`fringement would not put them on unequal footing
`with the federal government. See 28 U.S.C. § 1498.
`
`When, as here, “Congress evenhandedly regu-
`lates an activity in which both States and private ac-
`tors engage,” it does not encroach upon “the States’
`sovereign authority to regulate their own citizens.”
`Murphy v. NCAA, 138 S. Ct. 1461, 1478-79 (2018).
`So too would copyright enforcement against the
`States “not implicate States’ sovereignty to nearly
`the same degree as other kinds of jurisdiction.” Cf.
`Katz, 546 U.S. at 362.
`
`
` “When Congress grants an exclusive right or
`monopoly, its effects are pervasive; no citizen or
`State may escape its reach.” Goldstein v. California,
`412 U.S. 546, 560 (1973) (emphasis added). Yet fed-
`eral copyright protection is not exclusive to the au-
`thor if States are free to infringe copyrighted works
`without consequence. That toothless approach to se-
`curing copyright bears no resemblance to the federal
`copyright power the Framers ratified at the Conven-
`tion.
`
`
`
`
`
`
`
`
`
`
`
`
`16
`
`Allowing States to flout federal copyright law
`would erode the incentive for authors to put their
`blood, sweat and tears into creating original works.
`It would not “promote the progress of science and the
`useful arts” if a State, or one of its countless agents,
`could infringe an author’s creative works free from
`any fear of liability. As with all private property, any
`meaningful protection of intellectual property must
`allow the owner to exclude the world, including the
`States and state actors. No less than in bankruptcy
`proceedings under the Bankruptcy Clause, the
`States gave up any immunity from copyright in-
`fringement when they ratified the Copyright Clause.
`See Katz, 546 U.S. at 362-63.
`
`
`* * *
`The Constitution, it has been said, is not a
`“suicide pact.” Terminiello v. City of Chicago, 337
`U.S. 1, 36 (1949) (Jackson, J., dissenting). The
`Framers did not insist that Congress “secure” copy-
`rights with the tacit understanding that the States
`are perfectly free to trample them without conse-
`quence. On the contrary, the unique text, history,
`and importance of the Copyright Clause confirm that
`the States did not retain sovereign immunity against
`copyright-infringement claims.
`
`
`
`
`
`
`
`
`
`
`
`17
`
`CONCLUSION
`
`The Court should reverse the judgment below.
`
`Respectfully submitted,
`
`CORY L. ANDREWS
` Counsel of Record
`CORBIN K. BARTHOLD
`WASHINGTON LEGAL
` FOUNDATION
`2009 Massachusetts Ave., NW
`Washington, DC 20036
`(202) 588-0302
`candrews@wlf.org
`
`
`
`
`
`
`
`
`
`
`
`
`August 13, 2019
`
`
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`
`
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