Courthouse Steps Oral Argument: Allen v. Cooper

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Intellectual Property Practice Group, was recorded on Wednesday, November 6, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument teleforum on Allen v. Cooper. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us our panelists Zvi Rosen, who is a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law; as well as Professor Josh Blackman, who is an Associate Professor of Law at South Texas College of Law Houston. We also have our moderator Kevin Amer, who is Deputy General Counsel at the United States Copyright Office. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Kevin, the floor is yours.

 

Kevin R. Amer:  Thank you all for joining us today. We are here to talk about what I think is a very interesting case that was argued just yesterday in the Supreme Court, Allen v. Cooper. And the issue here is whether Congress validly subjected states to copyright infringement suits when it enacted the Copyright Remedy Clarification Act in 1990, or whether states are protected from copyright infringement claims under sovereign immunity. I’ll give just a little bit of background on the case for those who aren’t familiar with it and then turn it over to our panelists.

 

      This is a case, actually, that involves video and a photograph taken of a sunken pirate ship off the coast of North Carolina. It’s the pirate ship of the famous pirate Blackbeard. And the plaintiff in this case, Mr. Allen, took photos and video of the sunken ship. The State of North Carolina subsequently posted some of these materials on its website. Mr. Allen filed suit against the State, bringing copyright infringement claims.

 

      The Fourth Circuit said that the State was immune, and there’re essentially are two arguments before the Court that the petitioner, Mr. Allen, is asserting. The first is that -- there’re two sources of constitutional authority that Allen is asserting here. The first is what we call the Progress Clause, Article I Section 8, Clause 8 of the Constitution is the authority under which Congress is empowered to enact legislation to protect copyrights and patents. It says “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

 

      And so the argument is that that Article I authority is sufficient to allow Congress to subject states to liability for copyright infringement.

 

      The second argument is under Section 5 of the Fourteenth Amendment. And that is that authority empowered Congress to abrogate states’ sovereign immunity for copyright infringement claims, and that in fact Congress did so when it adopted the statute at issue in this case, which is codified at Section 511 of the Copyright Act, which says that states shall not be immune against copyright infringement claims.

 

      So to start, I think I wanted to turn to Professor Blackman, who is going to give us, I think, a more general overview of the Court’s Eleventh Amendment’s jurisprudence in this area, identifying some of the key points relating to the Article I argument. And then we’ll turn it over to Zvi Rosen, who is going to, I think, dive more deeply into this specific copyright related issues. So Professor Blackman, I turn it over to you to get us started.

 

Prof. Josh Blackman:  Thank you so much. I am not an expert in IP but hopefully I’ll be able to shed some light on the Court’s somewhat complicated jurisprudence on sovereign immunity. As a basic matter, the Eleventh Amendment has been interpreted to mean that people cannot sue states. That’s a general rule. But there are certain circumstances in which Congress can waive, or abrogate, a state’s sovereign immunity. One way they can do this is pursuant to Section 5 of the Fourteenth Amendment.

 

      The Fourteenth Amendment was enacted after the Eleventh Amendment and you could then use the Fourteenth Amendment to eliminate sovereign immunity. But we have some difficulties here. The first is whether the useful -- I’m sorry what’s it called? The Patent Clause or the Intellectual Property Clause. The first question is whether the Intellectual Property Clause is a valid basis to waive a state’s sovereign immunity. I need to walk you through a few cases that are relevant.

 

      The first case is called Seminole Tribe of Florida v. Florida from 1996. And this case held that Congress cannot abrogate sovereign immunity based on a statute enacted pursuant to the Indian Commerce Clause; that is, when Congress wants to regulate commerce between Indian tribes and the United States, that Congress can’t use that authority to then abrogate sovereign immunity. There was some language, though, in Seminole Tribe, that went even further. And the Court in Seminole Tribe seemed to say that Article I as a whole cannot be used to waive sovereign immunity. Now, Article I, of course, lists all of the powers that are enumerated, including the Patent Clause, or the Intellectual Property Clause, at issue in this case.

 

      A couple of years later, the Court decided a second case called Florida Prepaid Postsecondary Education Expense Board v. College Savings Banks. And this is a patent case based on the Patent Remedies Act. And Florida Prepaid also held that Congress cannot abrogate sovereign immunity through the patent powers. And you had this language in the Florida Prepaid case citing Seminole Tribe. And it said Seminole Tribe makes clear that Congress may not abrogate state’s sovereign immunity pursuant to its Article I powers.

 

      So far so good. So far the Court’s precedence seems to suggest that the provisions of Article I Section 8 can’t be used to waive sovereign immunity. But then we have another case in 2006 called Central Virginia Community College v. Katz. And this was a case decided in January of 2006 and was a 5-4 decision. This was one of the rare cases where Justice O’Connor was on the Court at the same time as Chief Justice Roberts. There’s only about a two month gap because, as you all know, Justice Alito replaced Justice O’Connor. But during this brief period where Justice O’Connor was about to leave the Court, she joined the Court’s progressives. And she joined the majority opinion by Justice John Paul Stevens.

 

      And the majority opinion in the Katz case went in a different direction. The issue in Katz was whether Congress could waive a state’s sovereign immunity pursuant to its Article I bankruptcy powers. Now, if you read Florida Prepaid and Seminole Tribe, they said, “No, no, no. All of the Article I powers are out.” But Justice Stevens, he basically said that that statement from Florida Prepaid was dicta. That the argument from Florida Prepaid was incorrect. That in fact there’s some provisions of Article I that can be used to waive sovereign immunity.

 

      Now, I'm sure most lawyers know that when a judge says that some old Supreme Court decision is dicta, that means they're simply going in a different direction because they had five votes. And O’Connor went with him as she was about to retire. So the vitality of the Katz case is somewhat in doubt.

 

      Okay, that brings us to the present. The present case involves the -- I always mess up the name of the statute. Zvi’s going to kill me. The Copyright Remedy Clarification Act of 1990. Did I get that one right? I think I got that right.

 

Kevin R. Amer:  That’s right. The CRCA. That’s right.

 

Prof. Josh Blackman:  The CRCA, yeah. It’s not RFRA. It’s CRCA [tried to sound it out] [Laughter].

 

      The Copyright Remedy Clarification Act of 1990. And the question is whether this statute validly abrogated North Carolina’s sovereign immunity from suit. And we have to then -- the Court has to decide how to reconcile these different precedents. Florida Prepaid seemed to say that Article I powers cannot be used to abrogate sovereign immunity. And then the essential Virginia Community College v. Katz case seemed to suggest “No, no, no, we didn’t really mean that.”

 

      So at a minimum we know that the patent element of the IP Clause of the Constitution doesn’t work. But does the copyright element of the clause work? I will let Zvi explain to you the differences between why copyrights and patents may be different for purposes of sovereign immunity.

 

      Okay, so that’s the first element of whether there’s some article and power issue. The second thing we have to consider is Section 5 of the Fourteenth Amendment. Does Congress have the authority, then, to abrogate the sovereign immunity? And here the relevant case is City of Boerne v. Flores. It’s a case from Texas. This was a complicated case that considered the constitutionality of the federal RFRA, the Religious Freedom Restoration Act. The case covered a lot of ground, but as relevant here, the Court put forward a test. And they said when Congress wants to waive a state’s sovereign immunity, they have to choose a fairly narrow remedy. They can’t choose something that’s too broad that becomes a substantive piece of legislation.

 

      And in this case when Congress was enacting the CRCA, they only found about 16 instances in which states were actually violating copyright. And one of the questions is “Is 16 violations of copyright enough of an injury -- a significant enough problem to justify the abrogation of states’ sovereign immunity?”

 

      So those are the two big legal issues. First, can Article I—the Intellectual Property Clause—be used to abrogate, and second, was the record put together sufficient to justify abrogation under the test in Boerne v. Flores? I think I’ll stop here and turn it over to Zvi who actually knows about IP law who can explain to you what happened yesterday.

 

Kevin R. Amer:  If I could just jump in. This is Kevin. That was a very good overview. I wanted to just sort of drill down a little bit on the Article I point. As you indicated, the issue seems to be what to we make of this Katz decision, and that’s -- do we sort of read Katz broadly for the proposition that -- you know, to essentially overrule the Seminole Tribe case to the extent it said that Article I can never be a basis to abrogate states’ sovereign immunity? Or is it limited to the unique circumstances of bankruptcy? And there was some back and forth about that during the argument yesterday.

 

      Who do you think sort of has the better of the argument, there?

 

Prof. Josh Blackman:  I think this case is somewhat difficult to decide because these precedents are nearly two decades old. In the ‘90s, Chief Justice Rehnquist was very much pushing decisions that would find that states had sovereign immunity. And that was a huge deal in the ‘90s. And that issue has just sort of died. We just don’t get much attention on this anymore.

 

      I don't know where Chief Justice Roberts is on this issue. Gorsuch didn’t say a word yesterday, which is uncharacteristic for him not to say a word yesterday. So I don't know where the Court is. I think the Court will probably, if you had to ask my predication, at least if not overrule Florida Prepaid say that in that sense Florida Prepaid was not correct in its entirety. That’s my predication. But I think the Katz case probably was more accurate. But again, all of the people who were on that opinion are gone, so it’s hard to predict.

 

Kevin R. Amer:  And of course another issue is that to what extent was the Article I argument squarely presented in Florida Prepaid? There was some discussion of whether that was dicta. Is that right?

 

Prof. Josh Blackman:  Right. That’s correct. In the Florida Prepaid case this issue wasn’t brief. It was primarily a case of due process. They didn’t even argue about the Article I Intellectual Property Clause issue, which is why I think Stevens was perhaps justified in saying it was dicta. Although the lawyer for the photographer, Mr. Allen, basically said, “If need be, we’re just going to ask you to overrule Florida Prepaid, at least that one sentence,” which, of course, implicates stare decisis and other values like that. The Court doesn’t like overruling precedents but that may be in the cards.

 

Kevin R. Amer:  I’m going to turn to Zvi Rosen and ask him to pick up on this. And I guess I would kick it off just by asking you -- so we have sort of the background—a very helpful background—on the evolution of the Court’s Eleventh Amendment jurisprudence. How do these principles factor in more specifically to the copyright arguments in this case?

 

Zvi Rosen:  Yeah. So I was going to say it’s so great to hear from an actual constitutional expert. I mean, this case has a lot of IP lawyers playing constitutional law, which is always dangerous. So I really appreciate Josh joining us on this. I’m reminded of the old joke whether it’s a Copyright Clause or a Patent Clause depends largely on who’s paying the bills.

     

      So this whole controversy goes back close to 40 years, about 35 years. The Supreme Court [inaudible 13:36] a case in ’85. And you started seeing all of these decisions questioning whether or not there would be a lawsuit against a state. A very large number of lawsuits against states for copyright infringement in a short time. And this leads the, I believe, the House Judiciary Committee to ask the Copyright Office to do a study. And Ralph Oman, who was Register at the time and who was actually able to be at argument yesterday, which was really nice to see, to prepare a report on what the volume -- where there was a problem, should there be a solution; that sort of situation. And they get about 40 comments from a lot of the pivotal -- all of the major interest groups. And they put out a study in 1987 that really explores the issue, and says, “Hey, this is a problem and Congress should deal with it.”

 

      And then, of course, Congress picks up its own assembly of a record and says, “Yes, we’re going after with the Copyright Remedy Clarification Act. We’re going to keep it as simple as possible and just say that yes, it is copyright infringement; that states have the same liability as everyone else for copyright infringement, essentially.”

 

      So on the bandwagon of that, the Patent Remedy Act was passed. And the Patent Remedy Act did have a much shorter record. And I think it was largely passed on the basis that, oh, well, if they offer it for copyright, why not patent? And the record, as I understand it, was substantially lighter for Patent Remedy Act.

 

      And then, of course, the Patent Remedy Act that ends up before the Supreme Court in Florida Prepaid.

 

      So there’s a situation where the Copyright Remedy Clarification Act has been of doubtful constitutionality for the past few years. I believe the Solicitor General has refused to defend it, etc. But there’s been a continuing problem of states which are infringing copyrights. I read a couple of amicus briefs in there from—Copyright Alliance did one, and a couple of others as well as [inaudible 15:36], the -- so [inaudible 15:40] site—of every single problem.

 

      And in this particular case, as Josh said it was about the ship, Queen Anne’s Revenge, which was built around 1710 and Blackbeard captured it in 1717; captured a bunch of ships, made his notoriety that lasts to today, and then this company Intersal had a permit from North Carolina to film the wreckage. And he hired Allen—and Allen is, of course, a photographer and videographer—to film all of the wreckage. And the State of North Carolina used it and Allen protested.  They lay out a settlement agreement whereby North Carolina would stop having the material online, and any material they did use had to have watermarks and a few other things. When the State of North Carolina stopped displaying these, Allen sued for violation of his copyrights.

     

      It’s kind of an interesting case in that the copyright elements aren’t really in doubt. There was some vague allegation of fair use in that it was generally for educational purposes, this wreck of a ship. And there was also some general mentions that the ship itself was property of the estate. So there are some general allegations of that, but those really aren’t at issue in the case, partially because of the procedural posture of it is at a motion to dismiss stage. So all of Allen’s allegations are treated as true and the Court is just looking at the underlying constitutional law issue.

 

      Oh, and I should mention in addition to continuing to use it after a settlement agreement, the State passed a law—it was called Blackbeard’s Law—and at argument Justice Sotomayor said several times she was very concerned about this. This law said that all pictures and videos of wrecks in the waters of North Carolina are public records of the state and are thus public property and not subject to copyright. Which is a really interesting and funky law. And I actually think it does help a little bit with a case that’s being heard next month, which is a little different, which is the public resources case about copyright and state edicts. State edicts and public records are not quite the same thing. But the conversion of these copyrights to public records definitely rubbed Justice Sotomayor the wrong way, and sort of had a funny feel to it.

 

      And so there’s a few other -- I think [inaudible 18:19] allegation with that. There’s also a breach of contract case going on because they had a settlement agreement, and that’s in North Carolina state court. So there are a couple of interlocking actions in this case. But there’s not really much question that the copyrights, which are of this wreck and were taken by Allen, are valid copyrights. The question is really is whether or not he has any ability to enforce them. And if he can enforce them, does he have -- have his exclusive rights been secured in them?

 

Kevin R. Amer:  And that’s very helpful. So let’s sort of -- I mean, we talked before about the argument under Article I, the Progress Clause. You focused more on the Section 5 of the Fourteenth Amendment piece. So let’s look at that a little bit more.

 

      So obviously we talked about the Florida Prepaid case, and for those who aren’t familiar with it as was indicated, that was a case involving whether Congress properly abrogated states’ sovereign immunity under the Patent Reform Act. And so in that case the Court looked at -- applied the standards for abrogation under the Fourteenth Amendment, which involves a few elements. The first is Congress has to clearly indicate an intent to abrogate. It has to identify constitutional violations. And the remedy that it chooses much be congruent and proportional to the violation.

 

      Now, in Florida Prepaid, this was a difficult precedent, obviously, for the petitioners here because the Court in Florida Prepaid held that the record, essentially, was inadequate in the context of the Patent Act to abrogate. So a question here is is there something different about copyrights? Is there -- and I think that -- there’s sort of two parts to that, and I’d like your views, both of you, but particularly Zvi.

 

      Number one, is there anything -- there was some back and forth yesterday about whether there was anything different about the record leading up to the CRCA, the Copyright Remedy Clarification Act. Was there anything -- was there a greater showing of constitutional deprivation going on in that context?

 

      And then maybe a more interesting legal question is is there something different about copyrights compared to patents? The petitioner’s lawyer made an argument in that respect, and I wonder if you could elaborate on that.

 

Zvi Rosen:  Yeah, sure. So I’ll actually answer the second one first—Is there anything different generally?—then I’ll look at the actual records. In terms of general differences, I think the answer is there absolutely can be a difference. And I don't know if the Court will find it to be enough, but a patent is a fairly short grant of monopoly in the idea, the invention. And thus you can easily infringe a patent without knowing it. In other words if you come up with the same idea a year later and haven’t been looking and just start using it at this state, you could potentially be infringing it and not knowing it.

 

      On the other hand, on the copyright because copyright infringement requires -- is a multi-step analysis; it requires access to the copyright -- well, very different standards, but the law school version is access, actual copying, and action copying, which is, say, more of a de minimis copying. You have to have all three of those. So access and actual copying both pretty much preclude unknowing copying. You might think you have a legal remedy for it, or something like that, but you can’t do it without having any other knowledge of the other work. You have to at least know the previous work exists that you’re copying.

 

      And that’s a fairly substantial difference in that if you see a photo, you might not know copyright law, or something like that, but you do know that it’s a photo. And if you know it’s in a copyright law, you know that copyright is going to attach to it. So the fact that you're very unlikely to have completely accidental infringement of a copyright -- it may not be lawful, but it’s very unlikely to be unknowing.

 

Kevin R. Amer:  Sorry, we should clarify. So how is this relevant to the constitutional analysis? Going to this question of whether negligent deprivations by a state can rise to the level of a constitutional violation. That’s the issue, right.

 

Zvi Rosen:  It’s very hard to have a complete accidental. And the question is what percentage is willful, intentional, negligent? And the Court is throwing around that perhaps 80 percent of them are intentional, which I think tracks pretty well with what most people’s assumptions would be about it, although it’s hard to know for sure. The concern of some, like the university libraries, is that things that they believe are fair use will become much more difficult because there’s a spectra of liability that they wouldn’t have before if they don’t have sovereign immunity.

 

      But, yeah, essentially, that’s how it would affect it; that to the extent the constitutional standard involves -- has a proportionality and intent component, the fact that copyright is harder to infringe on intentionally is definitely a way to distinguish them.

 

      And I just wanted to hop -- and I think it would be good to have Josh weigh on this as well, but I just wanted to hop briefly to the record. I’m actually curious what Josh thinks about this as well. I think the record as the actual congressional hearings on the CRCA is fairly short. But there’s also a much longer Copyright Office report with many more examples, which was prepared a few years earlier. And I actually wonder if that’s considered part of a record of the law. And I wondered, if in fact, the Copyright Office as a legislative agency affects that at all.

 

Prof. Josh Blackman:  Thank you, Zvi, for that helpful discussion. When we’re talking about Section 5 of the Fourteenth Amendment, we are often asking the question “Is the remedy that they proposed congruent and proportional to the injury to the states?” In other words, we are allowing people to go after the states for monetary damages, right? Is the sort of injury the people are suffering, does that justify allowing the states sovereign immunity to be waived?

 

      The leading case we have here is called Boerne v. Flores in which case Congress opened up every state for monetary damages if the state imposed certain burdens on the free exercise of religion. And the Court said that that was not enough, that the record of states violating religious freedom was too slight to enable this wide ranging abrogation of sovereign immunity.

 

      The facts in this case maybe are a little bit different because it’s a fairly specific type of violation, not just a broad violation of free exercise, but certain types of infringement on copyrights. Even still, you still need a record to show how big of a problem this is. And the record that was prepared for Congress showed, I think, 16 violations.

 

      The lawyer for Allen argued that these suits seen were just the tip of the iceberg and many were repeat violators. During the argument, two colorful exchanges came up. I think Justice Breyer asked, “What happens if a state made its own Netflix where they would just stream Captain Marvel and Spiderman and these other movies, and they would charge people 5 bucks for them, and say, ‘Okay, you guys, you can’t sue us.’?” So it’s possible that Congress didn’t anticipate those issues that would arise given modern technologies. Can the Court bootstrap and say, “Well, based on this present-day circumstances, we can then go back.” Or is it merely retroactive?

 

      Another issue that came up is the fact that North Carolina enacted Blackbeard’s Law, which is this insane law that says, “These pictures are public domain and they can’t give rise to any sort of copyright liability.” And Justice Sotomayor was very upset saying, “How can you pass this statute saying we willfully violate this guy’s copyright?”

 

      So I think North Carolina loses this one, but I don't quite know how the Court looks at the record and the other sorts of issues.

 

Kevin R. Amer:  The hypothetical that Justice Breyer raised, I think, implicates an interesting question that I think the Court was grappling with yesterday. And that is it seems clear -- and I believe even the lawyer for North Carolina agreed that Congress has the power to provide a remedy for intentional deprivations of property. And so in the example that Justice Breyer gave, the implication seemed to be that if a state was intentionally streaming movies from its website to the extent that this statute only reached that sort of conduct, North Carolina seemed to agree, as I take it, that that would be constitutional.

 

      And I think a question that is unresolved is to what extent does this sort of analysis require a case-by-case analysis? In other words, Justice Kagan raised a question, well, you know, suppose Congress—as Zvi, you indicated—decided that, say, 80 percent of copyright infringement involved some level of intentionality. Is that enough to abrogate sovereign immunity and free courts of the obligation to sort of look -- undertake a case-by-case analysis to determine whether or not states are immune? Or do you have to look individually at each individual case to determine whether a constitutional deprivation is being alleged?

 

Zvi Rosen:  I think it’s kind of a funny situation. I think this was something that, certainly counsel for the petitioner, wanted to focus on is that -- I mean, listen. I can imagine the Supreme Court saying whatever it wants. If it says that this is unconstitutional if the infringement is willful, so it would be. And I do think that -- my impression of most of the examples that have been given, like especially showing movies in a prison, is pretty clearly willful infringement, assuming you don’t pay for it, obviously.

 

      And so I think if that’s where they draw the line, I think that would be doable. I think requiring every single case be a case-by-case analysis of the constitutional factors would very quickly become a tremendous burden on small claimants. I mean, Allen if you -- Allen is not a large operation -- well, it’s not a -- Allen is not a large operation at all. And I think it would be a very -- just in terms of the barriers to getting recovery, it would immediately raise them substantially if you're going to require that on a case-by-case basis in every case. But that would certainly be one way to do it.

 

Kevin R. Amer:  There also seem to be concerns, I think, expressed about some of the equities here. Justice Ginsburg indicated -- I think she said there was something unseemly about the idea that states should be free to hold them and enforce copyrights of their own but immune from liability. I wonder if you noticed that as well and had any reactions to how the kind of equitable considerations may be relevant to the Court here.

 

Zvi Rosen:  Yeah. I think North Carolina really didn’t put its best foot forward in this case. And I think that’s never -- I mean, you never know, but I think in copyright cases, the party foreseen as a bad actor often has trouble -- you know, they did make clear that the Department of Antiquities for the state has a tiny budget, has to have priorities, and has to do education for the whole state on that budget as well as everything else. And allowing these sorts of lawsuits could cripple it. But I think the law, Blackbeard’s Law especially, was kind of a bad look that a number of justices found problematic. And I can certainly imagine a decision that says, “Look, this is a state declaring a state statute that are free to clear infringe copyright.” And that might provide a hook to give a limited decision that goes for Allen without making a dramatic federalism decision.

 

Kevin R. Amer:  Professor Blackman, do you agree?

 

Prof. Josh Blackman:  I think the equities here are somewhat tough and there might be a way for the Court to duck it. The lawyer for North Carolina suggested that this may not even be a copyright dispute, but this may just be a dispute about whether a state is complying with this settlement agreement they reached some years ago. And the Court may just duck this case altogether because it’s sort of obscure. And depending on what the Court holds here could have some very broad implications for other areas of intellectual property. So maybe they're going to dig or maybe they just rule on sort of a narrow ground.

 

      I just got the sense that this is not the sort of case where they want to overrule a precedent and invoke stare decisis. It’s a weird case. It’s a fun case. There may be reasons not to get to a sweeping ruling with these facts as these issues do not come up very often.

 

Kevin R. Amer:  That actually reminds me of one last question I had thought of before, and then I’m going to open it up to questions from the participants. One additional issue relating to the Article I point and Katz is to what extent -- and I alluded to this before. To the extent that Katz cast doubt on or overruled the more general statement in Seminole Tribe about Article I, is there a concern that that would then require a case-by-case, individual analysis of individual clauses within Article I to determine whether that clause provides a basis for abrogation?

 

      In other words, I think the lawyer for the petitioner in this case made an effort to really say “The Progress Clause is distinct within Article I and intellectual property rights, the right to enforce these federal rights, is something that is separate from the other Article I powers.” I wonder if there is any concern -- I wonder if the Court -- what your reactions are to that argument, if you think the Court bought it, or if you see a concern potentially on their part that that sort of analysis would potentially undo some of its earlier Eleventh Amendment jurisprudence.

 

Prof. Josh Blackman:  If we get rid of the broad prohibition from Florida Prepaid, that of Article I’s out, then you do need to do case-by-case decision, is it this clause and this clause and this clause? Maybe that’s the right answer because maybe some clauses in Article I are stronger than others. But I think that would create some uncertainty in the lower courts.

 

      And this is really the first time the Roberts Court has weighed in on this issue. The last case, again, was Katz which was from 2006. So it was decided in that brief period between Sandra Day O’Connor and Sam Alito. I checked the dates. Justice Alito joined the Court on January 31st. This case was decided January 23rd. So this was the last 5-4 opinion that Sandra Day O’Connor put her name on. And if this case had come out a week later, I don't know if it would’ve come out the same way.

 

      So I don’t know if they're going to endorse Katz. That may not be in the cards.

 

Kevin R. Amer:  So I think we have about 20 or so minutes left. And so I would like to turn it back over to the FedSoc folks to invite questions from the audience.

 

Micah Wallen:  Not seeing any questions light up the queue at the moment. Kevin, I will toss it back over to you.

 

Kevin R. Amer:  Well, don’t all volunteer at once. Zvi Rosen, I wonder if you had any thoughts about the question I just asked about Katz. I know you focused more on the Fourteenth Amendment piece. But what did you make of the argument that Katz really should cause the Court to revisit Seminole Tribe and Florida Prepaid?

 

Zvi Rosen:  Well, the question is are we going to treat Florida Prepaid as sort of a blip or sort of an expression of core doctrine. In other words, is the problem with Florida Prepaid that they really didn’t do the Patent Remedy Clarification Act right? Or is the issue that -- more fundamental than that? Because everyone seems to agree that the record -- I think there’s a line that was really terrible, something like that in the Patent Remedy context. Record of the Copyright Remedy is much more detailed, and I think the Patent Remedy law was really sort of tacked on following the success of the Copyright law.

 

      And I really don’t know which way they’ll go on that. Josh is more knowledgeable than I am about the con law -- about these broader trends in con law. I think it’s a question of whether the Court is more concerned about protecting Seminole Tribe or in terms of the underlying concerns of copyright infringement.

 

      It’s an interesting discussion as to what secure exclusive rights mean if there’s no remedy. And it’s kind of an interesting question because you have this weird usage in the IP Clause Congress shall have the preamble to secure exclusive rights for limited times to authorize further writings. And if Congress doesn’t have the right, it’s not an exclusive right if there’s no remedy, is one way to put the argument. And that was the sort of argument that was being argued that if there’s really -- you have a constitutional power to grant exclusive rights and the exclusive right has no remedy, then -- that’s how it’s been written out in the context of states. And I do wonder if that tells the Court “I want to pursue; it would also be nice to avoid breaking broader jurisprudence” so to speak because it’s limited to the language of the IP Clause.

 

Kevin R. Amer:  Yeah, and I think that’s an important point, and it’s one that the petitioner’s counsel really focused on; that there is something distinct -- that the IP Clause really does contemplate enforcement against all infringers. It is distinct within Article I. And you're right. He did focus on the term secure and exclusive rights. The argument is that it would be a little odd to conclude that these rights could be -- that states would be free to infringe. And yet you have this constitutional text saying “secure exclusive rights.”

 

Zvi Rosen:  And I also -- I’m giving to give one more final thought while we wait. There’s a number of interesting projects going on now where state universities are innovating in this space of things like controlled digital lending that may or may not be primeval under copyright. And I think being under the umbrella of sovereign immunity of the Eleventh Amendment is part of -- gives them cover to do that. Not exclusively, but I think it’s probably part of a calculus. And I think that’s -- it’s interesting to have it sort of lurking in the background. I don’t think it was in any of the briefs, or things like that, but I do think it’s definitely on the mind certainly of the amici on the state’s side.

 

Micah Wallen:  This is Micah with The Federalist Society. I’d just like to say there’s still no questions coming up through the lines, so Kevin, I’ll leave it up to you, but feel free to ask for closing remarks from our panelists if you believe we’ve covered everything.

 

Kevin R. Amer:  Yeah. Well, I’d first like to thank you both for participating. I think this was a very, very helpful overview. And I don't have any further questions for either of you, so if either of you do have brief closing remarks, maybe predictions, feel free to share them now.

 

Prof. Josh Blackman:  This is Josh. My only hope is that the pirate puns aren’t too bad in the opinions.

 

[Laughter]

 

      We do have to teach these cases, and as a general rule, puns always sound better in your head than in the U.S. reports. If you're listening law clerks, hint-hint.

 

Zvi Rosen:  Josh, if they're listening to one thing from this, I hope it’s that.

 

      I’m really excited to see what comes out. It’s going to be interesting. This has been an issue of copyright we’ve been grappling with in various ways for 32, 35 years. There’s been a lot of work on it, and I think there’s -- at a minimum, I think having a certain finality over the Copyright Remedy Act will be good one way or another. At a minimum I hope for that.

 

Micah Wallen:  All right. And on behalf of The Federalist Society, I’d like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.