`
`NO. 18-877
`
`In the
`Supreme Court of the United States
`________________
`
`FREDERICK L. ALLEN AND NAUTILUS
`PRODUCTIONS, LLC
`
`v.
`
`Petitioners,
`
`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 THE INTELLECTUAL PROPERTY LAW
`ASSOCIATION OF CHICAGO AS AMICUS CURIAE IN
`SUPPORT OF PETITIONERS
`__________________________________
`
`
`
`Counsel
`CHARLES W. SHIFLEY, PRESIDENT
`DONALD W. RUPERT
`THE INTELLECTUAL PROPERTY
`Counsel of Record
`LAW ASSOCIATION OF CHICAGO
`MARSHALL, GERSTEIN & BORUN LLP
`P.O. Box 472
`6300 WILLIS TOWER
`Chicago, IL 60690
`233 SOUTH WACKER DRIVE
`
`CHICAGO, IL 60606
`OF COUNSEL
`(312) 474-6300
`ROBERT H. RESIS
`DRUPERT@MARSHALLIP.COM
`BANNER & WITCOFF, LTD.
`
`71 SOUTH WACKER DRIVE
`SUITE 3600
`CHICAGO, IL 60606
`
`
`August 12, 2019
`
`
`
`
`
`i
`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`QUESTION PRESENTED ............................... 1
`
`II.
`
`INTEREST OF AMICUS CURIAE ................. 1
`
`III. SUMMARY OF ARGUMENT .......................... 2
`
`IV.
`
`SUMMARY OF FACTS .................................... 5
`
`V.
`
`ARGUMENT ..................................................... 8
`
`A.
`
`B.
`
`C.
`
`Section 511 of the Copyright Act
`is a clear and unambiguous
`abrogation of state sovereign
`immunity and this Court should
`honor Congressional intent and
`reverse the Fourth Circuit. .................... 8
`
`This Court’s precedent supports a
`finding that 17 USC § 511 validly
`abrogated sovereign immunity
`under Congressional Article I
`powers................................................... 13
`
`Congress’s intent to abrogate
`sovereign immunity is not
`negated by failure to explicitly
`refer to Section 5 of the
`Fourteenth Amendment. ..................... 21
`
`1.
`
`Copyright is protected
`under Section 5 of the
`Fourteenth Amendment
`
`
`
`
`
`ii
`
`
`and the CRCA is
`enforceable under that
`Amendment. .............................. 21
`
`2.
`
`This Court should defer to
`Congressional intent to
`validly abrogate sovereign
`immunity. .................................. 27
`
`D.
`
`N.C. Gen. Stat. 121-25(b) is
`preempted by federal law. ................... 33
`
`VI. CONCLUSION ............................................... 34
`
`
`
`
`
`
`
`iii
`
`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Federal Cases
`
`Allen v. Cooper,
`244 F. Supp. 3d 525 (E.D.N.C. 2017) ................. 7
`
`Allen v. Cooper,
`895 F.3d 337 (4th Cir. 2018) ......................passim
`
`Ashworth v. Albers Med., Inc.,
`395 F. Supp. 2d 395 (S.D. W. Va. 2005) ........... 12
`
`Atascadero State Hosp. v. Scanlon,
`473 U.S. 234 (1985) ........................................... 30
`
`Belknap v. Schild,
`161 U.S. 10 (1896) ............................................. 17
`
`Cent. Va. Cmty. Coll. v. Katz.,
`546 U.S. 356 (2006) ....................................passim
`
`Chicago, Burlington & Quincy Railroad Co.
`v. City of Chicago,
`116 U.S. 226 (1897) ........................................... 22
`
`Connecticut Nat. Bank v. Germain,
`503 U.S. 249 (1992) ........................................... 12
`
`Crandon v. United States,
`494 U.S. 152 (1990) ........................................... 11
`
`Crosby v. National Foreign Trade Council,
`530 U.S. 363 (2000) ..................................... 33, 34
`
`
`
`
`
`iv
`
`
`Felix the Cat Prods. v. New Line Cinema,
`No. 99-cv-9339 FMC (RCx), 2000 U.S.
`Dist. LEXIS 21763 (C.D. Cal. Apr. 28,
`2000) .................................................................. 34
`
`Florida Prepaid Postsecondary Educ.
`Expense Bd. v. Coll. Sav. Bank,
`527 U.S. 627 (1999) ....................................passim
`
`Hans v. Louisiana,
`134 U.S. 1 (1890) ......................................... 18, 30
`
`Knox v. Lee,
`79 U. S. 457 (1870) ............................................ 31
`
`Lynch v. Household Fin. Corp.,
`405 U.S. 538,552 (1972) .................................... 19
`
`McCarthy v. Bronson,
`500 U.S. 136 (1991) ........................................... 11
`
`Osborn v. Bank of the United States,
` 22.U.S. 738 (9 Wheat. 738) (1824) ............. 17, 18
`
`In re Pattison,
`132 B.R. 449 (Bankr. D.N.M. 1991) ................. 32
`
`Pennsylvania v. Union Gas Co.,
`491 U.S. 1 (1989) ............................................... 30
`
`Rubin v. United States,
`449 U.S. 424 (1981) ........................................... 12
`
`Seminole Tribe v. Florida,
`517 U.S. 44 (1996) ................................... 7, 13, 14
`
`
`
`
`
`v
`
`
`
`United States v. Palmer,
`16 U.S. 281, (3 Wheat. 281) (1818) ................... 10
`
`Ex parte Young,
`209 U.S. 123 (1908) ........................................... 17
`
`Federal Statutes
`
`17 U.S.C. § 501 ......................................................... 8
`
`17 U.S.C. § 501(a) ......................................... 9, 10, 11
`
`17 U.S.C. § 501(b) ................................................... 11
`
`17 U.S.C. § 511 ................................................passim
`
`17 U.S.C. § 511(a) ............................................passim
`
`17 U.S.C. § 910(a) ................................................... 10
`
`17 U.S.C. § 911 ....................................................... 10
`
`17 U.S.C. § 911(g)(1)............................................... 10
`
`Copyright Act of 1790 ....................................... 16, 17
`
`Copyright Act of 1976 ......................................passim
`
`Copyright Remedy Clarification Act of 1990,
`Pub. L. No. 101-553, 104 Stat. 2749
`(1990) ..........................................................passim
`
`Patent Act of 1790, Chapter 7, 1 Stat. 109-
`112 (April 10, 1790) ........................................... 16
`
`
`
`
`
`vi
`
`
`Patent and Plant Variety Protection
`Remedy Clarification Act of 1992, Pub.
`L. 102-560, 106 Stat. 4230 (1992) ..................... 13
`
`State Statutes
`
`N.C. Gen. Stat. § 121-25(b) ............................ 4, 6, 33
`
`N.C. Gen. Stat. § 132 ................................................ 6
`
`Rules
`
`Supreme Court Rule 37.6 ......................................... 1
`
`Constitutional Provisions
`
`Constitution of the United States,
`Eleventh Amendment .................................. 8, 12
`
`Constitution of the United States,
`Fourteenth Amendment ................... 3, 21, 26, 30
`
`Constitution of the United States,
`Article I .................................................... 7, 13, 14
`
`Constitution of the United States,
`Article I, Section 8 ................................... 3, 13, 30
`
`Constitution of the United States,
`Article I, Section 8, Clause 4 ............................ 16
`
`Constitution of the United States,
`Article I, Section 8, Clause 8 .............. 3, 7, 16, 20
`
`Constitution of the United States,
`Article VI ........................................................... 33
`
`
`
`
`
`vii
`
`
`
`Other Authorities
`
`Copyright Remedy Clarification Act
`(H.R.1131): Hearings Before the
`Subcomm. on Courts, Intellectual
`Property, and Administration of Justice
`of the House Committee on the
`Judiciary, 101 Cong. 93, 148 (1989) ................. 23
`
`Copyright Remedy Clarification Act (S.497):
`Hearings Before the Subcomm. on
`Patents, Copyrights, and Trademarks of
`the Senate Comm. on the Judiciary,
`101st Cong., 148 (1989)..................................... 23
`
`The Federalist Papers, No. 43 (James
`Madison) (Jan. 23, 1788) .................................. 20
`
`https://ipmall.law.unh.edu/sites/default/files
`/hosted_resources/lipa/copyrights/Copyri
`ght%20Remedy%20Clarification%20Act
`%20and%20Copyright%20Office%20Rep
`ort%20%28April%2012%20and%20July
`%2011,%201989%29.pdf (“Compiled
`Hearing Notes,” last visited August 1,
`2019) ...........................................................passim
`
`Journal of the Patent and Trademark Office
`Society, 85 J. Pat. & Trademark Off.
`Soc'y 33 (2003) ................................................... 17
`
`U.S. State Copyright Laws: Challenge and
`Potential, 21 Stan. Tech. L. Rev. 66
`(2017) ................................................................. 17
`
`
`
`
`
`viii
`
`
`William J. Rich, Patent Rights and State
`Immunity, 28 Fed. Cir. Bar J. 15 (2018) ...passim
`
`
`
`
`
`
`
`
`
`I. QUESTION PRESENTED
`
`Whether Congress validly abrogated state
`sovereign immunity via the Copyright Clarification
`Act, Pub. L. No. 101-553, 104 Stat. 2749 (1990), in
`providing remedies for authors of original expression
`whose federal copyrights are infringed by States.
`
`II. INTEREST OF AMICUS CURIAE 1
`
`The Intellectual Property Law Association of
`Chicago (“IPLAC”) respectfully submits this brief as
`amicus curiae in support of Petitioners Frederick L.
`Allen and Nautilus Productions, LLC.
`
`IPLAC requests that this Court reverse the
`Fourth Circuit’s decision in Allen et al. v. Cooper, et
`al., 895 F.3d 337 (4th Cir. 2018), and hold that
`Congress properly abrogated
`state
`sovereign
`immunity when enacting the Copyright Remedy
`Clarification Act of 1990, Pub. L. No. 101-553, 104
`Stat. 2749 (1990).
`
`in Chicago, Illinois, a
`in 1884
`Founded
`principal forum for U.S. technological innovation and
`intellectual property
`litigation,
`IPLAC
`is
`the
`country’s oldest bar association devoted exclusively
`to intellectual property matters. IPLAC’s over 1,000
`
`
`1 Pursuant to Supreme Court Rule 37.6, no counsel for a
`party authored this brief in whole or in any part or made a
`monetary contribution
`intended to
`fund preparation or
`submission of the brief, and no person other than the amicus
`curiae, its members, or its counsel, made such a monetary
`contribution. On June 24, 2019, each party filed a blanket
`consent in this Court to the filing of amicus briefs.
`
`
`
`
`
`2
`
`
`voluntary members include attorneys in private and
`corporate practices in the areas of copyrights,
`patents, trademarks, trade secrets, and the legal
`issues they present before federal bars throughout
`the United States, as well as before the U.S. Patent
`and Trademark Office and the U.S. Copyright
`Office.2 IPLAC’s members represent innovators and
`accused infringers in roughly equal measure and are
`split
`roughly equally between plaintiffs and
`defendants in litigation.
`
`As part of its central objectives, IPLAC is
`dedicated
`to aiding
`in developing
`intellectual
`property law, especially in the federal courts.3
`
`III. SUMMARY OF ARGUMENT
`
`IPLAC takes no position as to whether the
`actions of the State of North Carolina equate to
`copyright infringement. On the question presented,
`
`
`2 In addition to the required statement of footnote 1, IPLAC
`adds that after reasonable investigation, IPLAC believes that
`(a) no member of its Board or Amicus Committee who voted to
`prepare this brief, or any attorney in the law firm or
`corporation of such a member, represents a party to this
`litigation in this matter, (b) no representative of any party to
`this litigation participated in the authorship of this brief, and
`(c) no one other than IPLAC, or its members who authored this
`brief and their law firms or employers, made a monetary
`contribution to the preparation or submission of this brief.
`
`3 Although over 30 federal judges are honorary members of
`IPLAC, none of them was consulted or participated in any way
`regarding this brief.
`
`
`
`
`
`3
`
`
`the Fourth Circuit’s decision should be reversed for
`separate, but related, reasons.
`
`First, when Congress amended the Copyright
`
`Act in 1990 by enacting the Copyright Remedy
`Clarification Act
`(“CRCA”),
`it used clear and
`unambiguous language stating that the statute
`abrogates state sovereign immunity. This Court
`should accept Congress’s unequivocal expression of
`the intent to abrogate sovereign immunity and
`reverse the Fourth Circuit.
`
`Second, this Court should hold that Congress
`may validly legislate the abrogation of sovereign
`immunity under its Article I, Section 8 powers. The
`record supports a conclusion that the Framers
`foresaw limited abrogation under Article I, Section 8,
`Clause 8, to achieve the nationwide harmonized
`copyright and patent system in place today. This
`Court has rarely departed from that rule and IPLAC
`respectfully urges the Court to reverse the Fourth
`Circuit’s decision for this additional reason.
`
`Third, because the Congressional power to
`establish copyright protection is a Constitutional
`power, Congress may exercise that power without
`expressly referring to the Fourteenth Amendment so
`long as there is a legislative record supporting the
`Congressional action. Here that record is significant
`and substantial. There is no question that Congress
`reacted to rampant state infringement of copyright
`without due process and just compensation being
`available to authors. This confirms Congress’s intent
`to abrogate state sovereign immunity under the
`Fourteenth Amendment, including the Due Process
`
`
`
`
`
`4
`
`
`and/or the Privileges or Immunities Clauses of that
`Amendment.
`
`Fourth, this case presents an unprecedented
`opportunity for the Court to solidify the method by
`which Congress may validly abrogate state sovereign
`immunity. Specifically, the Court should hold that
`sovereign immunity may be abrogated under the
`Fourteenth Amendment as well as through the
`Intellectual Property Clause of Article I, Section 8 of
`the Constitution. When sovereign
`immunity
`is
`available as a defense
`in copyright matters,
`copyright authors risk substantial harm with no
`recourse. As a result, authors and creators have less
`incentive and in instances, perhaps, no incentive, to
`create art, if the states may infringe at will.
`
`Finally, IPLAC respectfully requests that this
`Court conclude that N.C. Gen. Stat. § 121-25(b) is
`preempted by the Copyright Act. North Carolina’s
`attempt to define what falls into the public domain
`conflicts with the Copyright Act. If the North
`Carolina statute remains and other states follow
`North Carolina’s lead, the country will end up with a
`poor hodge-podge of state laws affecting the exclusive
`powers available to the creators of copyrighted works
`under the Constitution.
`
`respectfully
`IPLAC
`reasons,
`these
`For
`requests that this Court reverse the Fourth Circuit
`and hold the CRCA is a valid abrogation of state
`sovereign immunity.
`
`
`
`
`
`
`
`5
`
`
`
`IV. SUMMARY OF FACTS4
`
`In 1718, the Queen Anne’s Revenge, the
`flagship of pirate Blackbeard, ran aground off the
`coast of North Carolina and was abandoned. Over
`250 years later, Intersal, Inc., a research and salvage
`company, entered into an agreement with the North
`Carolina Department of Natural and Cultural
`Resources to salvage the shipwreck and recover
`relics. The North Carolina state government
`considers the shipwreck to be a historic artifact and
`a source of public and tourist interest.
`
`Petitioner Allen is a videographer and owner
`of Petitioner Nautilus Productions, LLC. Over the
`course of more than twenty years and under contract
`with the research and salvage firm, Intersal, they
`recorded and documented the salvage of the
`shipwreck.
`
`From 1996 to 2013, Petitioner Allen and his
`company Nautilus took many original photographs
`and videos of the wreck, and the salvaging
`operations. Allen received 13 copyright registrations
`in these materials (collectively the “works”) from the
`U.S. Copyright Office and subsequently used the
`works for commercial purposes.
`
`In October 2013, North Carolina, through its
`Department of Natural Resources and Cultural
`Resources (the “North Carolina Department”), copied
`
`
`4 See generally, Allen v. Cooper, 895 F.3d 337, 343-46 (4th
`Cir. 2018)
`
`
`
`
`
`6
`
`
`and displayed Petitioners’ works by uploading and
`posting images online and in print media. This was
`done without the authorization of Allen and
`Nautilus. Nautilus brought suit
`for copyright
`infringement and the parties settled on October 15,
`2013, with the agreement that North Carolina would
`not infringe the works anymore. This was the only
`agreement directly between the North Carolina
`Department and Nautilus and Allen.5
`
`Despite the settlement, Petitioners allege that
`North Carolina resumed its infringing activities,
`after originally taking down the offending images.
`Further, on August 18, 2015, North Carolina passed
`H.B. 184, N.C. Gen. Stat. § 121-25(b), dubbed
`“Blackbeard’s Law.”6 The face of that law suggests
`an attempt to avoid liability for infringing actions by
`converting any “photographs, video recording, or
`other documentary materials,” into public records,
`when they pertain to a shipwreck or its contents,
`artifacts, or historical materials, in custody of any
`
`
`5 The North Carolina Department was given authorization
`for the limited use of some of the works, in museums, exhibits
`for educational purposes, and research.
`
`6 N.C. Gen. Stat. § 121-25(b) states:
`
`All photographs, video recordings, or other
`documentary materials of a derelict vessel or
`shipwreck or its contents, relics, artifacts, or
`historic materials in the custody of any agency
`of North Carolina
`government
`or
`its
`subdivisions shall be a public record pursuant to
`Chapter 132 of the General Statutes.
`
`
`
`
`
`7
`
`
`agency of the North Carolina government. The
`statute provides no remedy available to copyright
`holders if the state uses such “public” records.
`
`On December 1, 2015, Petitioners filed suit in
`the U.S. District Court for the Eastern District of
`North Carolina, claiming infringement of their works
`under the Copyright Act. North Carolina moved to
`dismiss the claim based on the doctrine of state
`sovereign immunity, as defined in Florida Prepaid,
`which in turn relied on Seminole Tribe. See Florida
`Prepaid Postsecondary Educ. Expense Bd. v. Coll.
`Sav. Bank, 527 U.S. 627, 636-38 (1999); Seminole
`Tribe v. Florida, 517 U.S. 44, 74-76 (1996). The
`District Court denied the motion, holding that in
`passing the 1990 CRCA Congress clearly and
`unambiguously stated the intent to abrogate state
`sovereign
`immunity
`in copyright
`infringement
`matters. In addition, the District Court held that
`while Congress may not rely on Article I, Section 8,
`clause 8 of the Constitution to abrogate state
`sovereign immunity, the record, in this case, showed
`that Congress was acting under Section 5 of the
`Fourteenth Amendment, in responding to state
`infringement and abuse of copyrights. Allen v.
`Cooper, 244 F. Supp. 3d 525, 535-37 (E.D.N.C. 2017).
`
`North Carolina appealed that decision and the
`Fourth Circuit reversed the District Court. The
`Fourth Circuit panel held that any reliance, on
`Article I of the Constitution, even if coupled with the
`Due Process and Privileges or Immunities Clauses of
`the Fourteenth Amendment, was an invalid basis for
`abrogation of state sovereign immunity. The Circuit
`also held that Congress did not make it clear that it
`
`
`
`
`
`8
`
`
`was relying on Section 5 of the Fourteenth
`Amendment as the source of authority, and therefore
`there was no valid basis supporting abrogation of
`state immunity. Allen v. Cooper, 895 F.3d at 349-50.
`
`Allen and Nautilus appeal the Fourth Circuit’s
`decision.
`
`V. ARGUMENT
`
`A.
`
`SECTION 511 OF THE COPYRIGHT ACT
`IS A CLEAR AND UNAMBIGUOUS
`ABROGATION OF STATE SOVEREIGN
`IMMUNITY AND THIS COURT SHOULD
`HONOR CONGRESSIONAL INTENT AND
`REVERSE THE FOURTH CIRCUIT.
`
`The focus of this case is the application of
`amendments to the copyright statutes made by the
`CRCA of 1990. For purposes of this case, the
`important amendment was to add Section 511 and
`amend Section 501 of chapter 5, title 17 of the United
`States Code. The added Section 511(a) is expressly
`an elimination of sovereign immunity to states, their
`agencies, and officers, in toto:
`
`Any State, any instrumentality of a
`State, and any officer or employee of a
`State or instrumentality of a State
`acting in his or her official capacity,
`shall not be immune, under the
`Eleventh Amendment of
`the
`Constitution of the United States or
`under any other doctrine of sovereign
`immunity, from suit in Federal court by
`
`
`
`
`
`9
`
`
`
`any person, including any governmental
`or nongovernmental entity,
`for a
`violation of any of the exclusive rights of
`a copyright owner provided by sections
`106 through 119, for importing copies of
`phonorecords in violation of section 602,
`or for any other violation under this
`title.
`
`17 U.S.C. § 511(a) (emphasis added).
`
`Congress did not stop there. The CRCA also
`amended Section 501(a) of title 17 to add a defintion
`making the states subject to the reach of the
`copyright laws. That section, with the amendment
`emphasized, is:
`
`the
`Anyone who violates any of
`exclusive rights of the copyright owner
`as provided by sections 106 through 122
`or of the author as provided in section
`106A(a), or who
`imports copies or
`phonorecords into the United States in
`violation of section 602, is an infringer
`of the copyright or right of the author,
`as the case may be. For purposes of this
`chapter (other than section 506), any
`reference to copyright shall be deemed
`to
`include the rights conferred by
`section 106A(a). As used in this
`subsection, the term “anyone” includes
`any State, any instrumentality of a
`State, and any officer or employee of a
`State or instrumentality of a State
`acting in his or her official capacity. Any
`
`
`
`
`
`10
`
`
`
`State, and any such instrumentality,
`officer, or employee, shall be subject to
`the provisions of this title in the same
`manner and to the same extent as any
`nongovernmental entity.7
`
`17 U.S.C. § 501(a) (emphasis added).
`
`This Court has instructed that when the
`legislature is clear as to its intention, courts are
`bound to honor that intention. United States v.
`Palmer, 16 U.S. (3 Wheat. 281) 281, 290 (1818)
`(“when
`the
`legislature manifests
`this
`clear
`understanding of its own intention, which intention
`consists with its words, courts are bound by it.”).
`Both parties and the Fourth Circuit agree to the
`meaning of Section 511, and there is no question as
`to its intent. The plain, unabiguous words in Section
`511(a) have only one meaning: the abrogation of
`state sovereign immunity for copyright infringement.
`
`Every term and phrase used in Section 511(a)
`leads to this singlar result. As noted, the CRCA also
`explicitly amended Section 501(a) of the copyright
`statute relating to “infringement of copyright” to
`include “any state, any instrumentality of a state,
`and any officer or employee of a state or
`instrumentality of a state, acting in his or her official
`capacity,” as being in the defined group of “anyone”
`
`
`7 Congress also amended Sections 910(a) and 911 of the
`Copyright Act, with the CRCA. These sections pertain only to
`mask works and add the same above language subjecting state
`actors to liability. See 17 U.S.C. §§ 910(a) and 911(g)(1).
`
`
`
`
`
`11
`
`
`used in the Copyright Act. That language therefore
`subjected North Carolina to the Act. CRCA, 1990
`Enacted H.R. 3045, 101 Enacted H.R. 3045, 104 Stat.
`2749, 101 P.L. 553, 1990 Enacted H.R. 3045, 101
`Enacted H.R. 3045. Moreover, Section 501(a)
`provides that all of those state actors are subject to
`the entirey of Title 5 “in the same manner and to the
`same extent as any nongovernmental entity.” 17
`U.S.C. § 501(a). This, of course, includes violations of
`the copyrigtht owner’s exclusive rights and subject to
`the remedies described in 17 U.S.C. § 501(b). Such
`remedies
`
`include
`impoundment of
`infringing
`materials, actual damages, statutory damages, profit
`damages, costs, and attorney’s fees under the
`Copyright Act. Id. A crystal glass could not be clearer
`than
`this
`statute. This
`case presents an
`unambiguous Congressional intent to subject states
`and state actors to Section 511 of the Copyright Act.
`
`Here, the expression of Congress also stated
`that “[a]ny State … shall not be immune under the
`Eleventh Amendment … or any other doctrine of
`soverign immunity from any suit in Federal court”
`for copyright infringement. 17 U.S.C. § 511(a)
`(emphasis added). And, “any state” means just that;
`the definition provided by Congress in Section 501(a)
`gives states no way to escape the coverage of the
`Copyright Act.
`
`Looking at “the particular statutory language
`at issue, as well as the language and design of the
`statute as a whole,” Congress plainly intended to
`hold states and state actors responsible for copyright
`infringement. McCarthy v. Bronson, 500 U.S. 136,
`139 (1991); see also Crandon v. United States, 494
`
`
`
`
`
`12
`
`
`U.S. 152, 158 (1990) (“In determining the meaning of
`the statute, we look not only to the particular
`statutory language, but to the design of the statute
`as a whole and to its object and policy”). The
`language in Section 511(a) and the design of the
`Copyright Act do not give rise to any other possible
`interpretation. The inquiry must end there.
`
`The inquiry into applicability of a statute ends
`“[if the statute] clear[ly] and unambiguous[ly] and
`plainly expresses the legislative intent” and “the
`court will enforce the plain meaning without resort
`to interpretation” Ashworth v. Albers Med., Inc., 395
`F. Supp. 2d 395, 405 (S.D. W. Va. 2005); see also
`Connecticut Nat. Bank v. Germain, 503 U.S. 249,
`253-254 (1992) (quoting Rubin v. United States, 449
`U.S. 424, 430 (1981)) (“We have stated time and
`again that courts must presume that a legislature
`says in a statute what it means and means in a
`statute what it says there. When the words of a
`statute are unambiguous, then, this first canon is
`also the last: the ‘judicial inquiry is complete.’”).
`Because Section 511(a) is unambiguous, this Court
`should reverse the Fourth Circuit, and hold Section
`511 is an unambiguous statute applicable to and
`enforceable against states.
`
`Here, the Fourth Circuit recognized the
`unambiguous feature of Section 511(a), stating: “It is
`well established that any abrogation of a State’s
`Eleventh Amendment immuity requires both a clear
`statement of congressional intent—which, to be sure,
`§ 511 provides—and a valid exercise of congressional
`power.” Allen v. Cooper, 895 F.3d at 347. Given the
`Fourth Circuit’s agreement that Section 511 is a
`
`
`
`
`
`13
`
`
`“clear statement” of Congressional intent to abrogate
`state soverign immunity, the question turns to
`whether Congress validly exercised its powers.
`
`B.
`
`THIS COURT’S PRECEDENT SUPPORTS A
`FINDING THAT 17 USC § 511 VALIDLY
`ABROGATED SOVEREIGN IMMUNITY
`UNDER CONGRESSIONAL ARTICLE I
`POWERS.
`
`The Court should reverse the Fourth Circuit’s
`erroneous holding and find that Congress validly
`abrogated state sovereign immunity under Section
`511 of the CRCA. The law has evolved, and sovereign
`immunity abrogation must also be considered under
`Article I, Section 8 of the Constitution.
`
`Many courts, including the Fourth Circuit in
`this case, have incorrectly relied on Seminole Tribe
`for the assertion that Congress cannot abrogate
`sovereign immunity under its Article I powers.
`Seminole Tribe, 517 U.S. at 76. In that case, and
`again in Florida Prepaid, this Court refrained from
`discussing broad applicability of the Intellectual
`Property Clause. Id.; Florida Prepaid, 527 U.S. at
`636-38. This Court, relying on Seminole Tribe,
`invalidated abrogation under the Patent Remedy
`Clarification Act in Florida Prepaid, but for the
`reasons below, those cases should no longer be
`considered applicable. Florida Prepaid, 527 U.S. at
`636.
`
`Indeed, continued reliance on those two cases
`should be revisited because seven years after Florida
`Prepaid, this Court explicitly deemed the assumption
`
`
`
`
`
`14
`
`
`underlying the holding in Seminole Tribe was
`“erroneous” and the Court is “not bound to follow our
`dicta in a prior case.” Cent. Va. Cmty. Coll. v. Katz,
`546 U.S. 356, 363 (2006). Recognition of the
`erroneous nature of Seminole Tribe means other
`cases relying on it should not survive either. Florida
`Prepaid is one of those cases.
`
`The Court in Seminole Tribe assumed that the
`Bankruptcy Clause under Article I and derivatives
`therein did not validly abrogate sovereign immunity.
`Seminole Tribe 517 U.S. at 65. This assumption was
`dicta and erroneous as noted in Katz and not
`followed there. Katz, 546 U.S. at 363.8
`
`Referring to the Bankruptcy Clause in Article
`I at issue in Katz, this Court concluded that the
`Framers would have foreseen limited abrogation
`when including that clause, and enacting subsequent
`legislation:
`
`It is appropriate to presume that the
`Framers of
`the Constitution were
`familiar with the contemporary legal
`
`
`8 The Fourth Circuit refused any argument using Katz,
`because that case discussed the Bankruptcy Clause rather than
`the Intellectual Property Clause. See Allen, v. Cooper, 895 F.3d
`at 348. However, the court failed to mention that Seminole
`Tribe is entirely focused on the bankruptcy clause, and Florida
`Prepaid is based on Seminole Tribe. Seminole Tribe, 517 U.S. at
`73-73; Florida Prepaid, 527 U.S. at 636. The conclusion that
`Katz’s Bankruptcy Clause focus makes it irrelevant is therefore
`erroneous. Both clauses are part of the enumerated powers
`given to Congress by the Constitution.
`
`
`
`
`
`15
`
`the
`adopted
`they
`context when
`Bankruptcy Clause -- a provision which
`. . . reflects the States’ acquiescence in a
`grant
`of
`congressional power
`to
`subordinate to the pressing goal of
`harmonizing bankruptcy law sovereign
`immunity defenses that might have
`been
`asserted
`in
`bankruptcy
`proceedings. The history
`of
`the
`Bankruptcy Clause, the reasons it was
`inserted in the Constitution, and the
`legislation both proposed and enacted
`under
`its
`auspices
`immediately
`following ratification of the Constitution
`demonstrates that it was intended not
`just as a grant of legislative authority to
`Congress, but also to authorize limited
`subordination
`of
`state
`sovereign
`immunity in the bankruptcy arena.
`Foremost on the minds of those who
`adopted the Clause were intractable
`problems, not to mention the injustice,
`created by one State’s imprisoning of
`debtors who had been discharged (from
`prison and of their debts) in and by
`another State. As discussed below, to
`remedy
`this
`problem,
`the
`first
`Congresses considered, and the Sixth
`Congress enacted, bankruptcy
`laws
`authorizing federal courts to, among
`other things, issue writs of habeas
`corpus directed at
`state
`officials
`ordering the release of debtors from
`state prisons.
`
`
`
`
`
`
`
`16
`
`
`Katz, 546 U.S. at 372.
`
`The Court then concluded that the creation of
`the Bankruptcy Clause and
`its
`subsequent
`legislation was an
`indication of the Framers’
`intention to abrogate sovereign immunity in a
`limited fashion. Id. Indeed, this Court recognized
`significant problems were posed by allowing
`sovereign
`immunity
`to
`continue under
`the
`Bankruptcy Clause. Id. Those problems are no less
`significant when considering intellectual property.
`
`In Article I, the Intellectual Property Clause is
`found just four short clauses after the Bankruptcy
`Clause, and is included in the same set of specific
`powers granted to Congress by the Constitution.
`U.S. Const., Art. I, § 8, cl. 8; U.S. Const., Art. I., § 8,
`cl. 4. The legislative history of the statutes enacted
`under the Intellectual Property Clause after adoption
`of the Constitution mirrors that of the Bankruptcy
`Clause, and for similar reasons implicates limited
`abrogation of state sovereign immunity. See Katz,
`546 U.S. at 372.
`
`Using its Constitutional power under Article I,
`§ 8, cl. 8 Congress passed The Patent Act of 1790 and
`the Copyright Act of 1790 which provided how the
`federal government would grant and deny protected
`status to inventions and works of art. Patent Act of
`1790, Ch. 7, 1 Stat. 109-112 (April 10, 1790);
`Copyright Act of 1790, 1 Stat. 124 (May 21, 1790);
`
`
`
`
`
`17
`
`
`see also 85 J. Pat. & Trademark Off. Soc'y 33 (2003)9.
`Indeed, under that Copyright Act, and subsequent
`interpretation and
`legislation,
`there was no
`protection without federal registration. 1 Stat. 124.
`
`The Framers and the First United States
`Congress made a conscious choice to harmonize
`copyright and patent law across the new republic, by
`limiting state sovereignty. Even though some states
`may have statutes that address copyright matters
`and provide for a common law copyright, states do
`not have registration procedures and their copyright
`laws are not recognized outside their respective
`borders, a result the Framers
`likely
`foresaw.
`Trimble, Marketa, U.S. State Copyright Laws:
`Challenge and Potential, 21 Stan. Tech. L. Rev. 66,
`112-25 (2017); Katz, 546 U.S. at 372. By creating a
`federal system to r
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
