Legal Docket: Piracy and copyright infringement

NICK EICHER, HOST: Good morning and thanks for listening to The World and Everything in It! Today is Monday, the 2nd of December, 2019. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Good morning to you!

In case you’re wondering about our choice of music here, it’s because it relates to the first of our two cases today. 

Yes, that’s right, we’re talking about piracy.

This one (Allen v Cooper) arises from the infamous English pirate of the 18th century, Edward Teach, better known as Blackbeard. He did his dirty deeds around the Caribbean and eastern coast of what’s now the United States.

Now, you may know more about the Hollywood pirate, bumbling Jack Sparrow, sought out by fugitive Henry Turner to form a protective alliance.

TURNER: No, it can’t be. I’ve spent years searching for…this? The great Jack Sparrow is not some drunk in a cell. Do you even have a ship? A crew? (looks down) Pants?

SPARROW: A great pirate does not require such intricacies.

EICHER: Now, the dispute before the Supreme Court today—three centuries on from Blackbeard’s time—doesn’t involve intricacies like a crew, daggers, or peg legs.

But it does involve a ship and copyright law. 

Here’s how.

Blackbeard’s ship, Queen Anne’s Revenge, wrecked in 1718 off what’s now the shore of North Carolina.

Flash forward a few centuries and a salvage company finds it in 1996. It worked out a deal with North Carolina: the state would own the wreckage, but the salvage company would keep proceeds from a documentary it would make using the services of documentarian Frederick Allen. 

That agreement said North Carolina could publish certain documents related to the salvage for certain limited purposes.

REICHARD: Allen, the documentarian, obtained a copyright on his photographic works. 

The problem arose when North Carolina’s Cultural Affairs Department posted those works online without his permission. 

Allen complained, and the state paid him $15,000 for violating his copyright. That was six years ago, in 2013. The state also agreed that going forward, it would watermark his material and put a timestamp on whatever it did post of his work.

But Allen says the state didn’t keep its end of the deal. Not only that, North Carolina went further. It passed a law named for Blackbeard that says the state can’t be sued for copyright infringement. 

Despite that law, Allen sued for copyright infringement anyway.

ROBERTS: We’ll hear argument next in 18-877, Allen v Cooper. Mr. Shaffer?

Derek Shaffer argued on behalf of Allen. He pointed to a 1990 law called the Copyright Remedy Clarification Act, the CRCA. Congress passed that to prevent states from asserting sovereign immunity as a defense against copyright infringement.

SHAFFER: When states infringe the exclusive federal rights that Congress is charged with securing, Congress can make states pay for doing so. That’s our respectful submission today, one that follows from the Constitution’s text and affords ample basis for this court to uphold the work Congress did in enacting the CRCA. 

But North Carolina argues CRCA isn’t even constitutional and lots of lower courts agree. So the state says Allen’s just out of luck because he can’t overcome its sovereign immunity.

North Carolina’s lawyer, Ryan Park, pleaded that the state posted Allen’s works in good faith. After all, the penalty for copyright infringement is steep- $150,000 per incident. Why would it risk that unless it thought it could?

And besides, limited resources matter. Listen to this exchange between Park and Justice Elena Kagan.

PARK: Our cultural-resources department is operating on a shoestring budget trying to recover and excavate and preserve the remaining aspects of the Queen’s Anne Revenge, around 40 percent of which under their estimates is still on the bottom of the ocean. It’s hard to get money to fund important work like this for the sake of history.

KAGAN: I think though, Mr. Park, that it’s not the strongest reliance argument to say we relied on this court’s holding to infringe other people’s rights.

Lawyer Park continued to feel the heat from Justice Stephen Breyer, who worried about a rule that would encourage willful copyright infringement by states:

BREYER: What the state decides to do with its own website, charging $5 or something, is to run Rocky, Marvel, whatever, Spider-Man, and perhaps Groundhog Day, all right? Now, great idea. Several billion dollars flows into the treasury. Okay? Now, if you win, why won’t that happen? And, by the way, copyright is to promote the progress of science and useful arts by securing for a limited time to authors — …the exclusive right to their respective writings. But, of course, California decides that the person who wrote Rocky, Marvel, et cetera, will unfortunately receive nothing because everyone will have seen it on the state’s own streaming device. All right. What is your response to that?

Park’s response was a court injunction. But not money damages.

Justice Ruth Bader Ginsburg followed up with a possible solution that involved Congress.

GINSBURG: There’s something unseemly about a state saying, yes, we can hold copyrights and we can hold infringers to account to us, but we can infringe to our heart’s content and be immune from any compensatory damages. 

Could Congress say condition the copyright privileges that states has by saying we’re gonna allow you to copyright works but the price is you have to be fair to the other side so that when you’re infringing you’ll be liable. Could, does Congress have Article I authority to do that?

Park responded no, that would be putting an unconstitutional condition on the right a state already has to copyright something. And he underscored whose money we’re talking about.

PARK: I think the important understanding that the Founders had was when you sue a sovereign, on the opposite side of the judgment are the people and the people’s money.

The waters are muddied in this area of the law. 

Still, given the skepticism I heard from both ideological wings of the court, I think North Carolina will be branded as something of a pirate for plundering the photographer’s work.

This final argument today pits telecommunications giant Comcast against the founder of African-American owned ESN, Entertainment Studios Network. 

A businessman named Byron Allen owns ESN. He alleges that Comcast discriminated against him by refusing to distribute his channels. Some of those channels include Comedy.TV, JusticeCentral.TV, and Cars.TV. Allen points to other white-owned channels Comcast launched during that same time period. That, even though Comcast told him it lacked capacity to carry more channels. 

For its part, Comcast says it didn’t think Allen’s content would attract enough customers to make its investment worthwhile. 

But the legal question in this case is rather technical: does Allen need to plead in his lawsuit that race is the main reason Comcast denied him a contract? Or can he just plead mixed-motives and proceed to prove discrimination during the course of the trial? 

Justice Breyer wondered how to craft a rule to parse out the real reasons behind someone’s actions. Listen to his scenario:

BREYER: Smith says this man wouldn’t contract with me. I know him. He is the most bigoted person in this state, and, as normal, he said all kinds of racist things and jumped up and down and so forth. And, by the way, he’s my fifth cousin, and he hates me, and I’ve never met anybody who hated me so much. And I think, for both reasons, he would have never entered into this contract.

Justice Breyer’s point was if it’s eventually shown the fifth cousin hates me is the reason he didn’t want a contract, that’ll prevail despite the other reason. Why continue a lawsuit that will ultimately fail? 

Byron Allen’s lawyer, Erwin Chemerinsky, argued it all depends on what stage of litigation we’re in. The Supreme Court has already said we don’t decide early on what the actual cause might be for denying a contract. That’s for a jury to decide. 

The law here is The Civil Rights Act of 1866, enacted right after the Civil War. It guarantees the right of “all persons the same rights to make and enforce contracts as is enjoyed by white citizens.”

But a Supreme Court decision in 2007 says you can’t just say things are facts to make yourself look good in the complaint. You have to allege something that if accepted as true, would be enough to state a plausible claim for relief right off the bat. 

It didn’t sound as though most of the justices thought Byron Allen had done that. 

Listen to this exchange between Justice Kagan and Chemerinsky, again for Allen. She mentions the “but for” rule. That means the plaintiff needs to show that “but for” race, he’d have gotten that contract.

KAGAN: There can be three but-for causes in a case. You know, if you take away each of these three things, the outcome would have been different. But motivating factor is something different. Motivating factor you can take out and the outcome would still be the same. And it just seems quite confusing to me to put in something that’s not the same question as the ultimate question at the pleading stage, rather than to understand the pleadings are pleadings and they’re before discovery and nobody can be expected to know what the defendant is going to say.

CHEMERINSKY: I disagree, Justice Kagan.

Chemerinsky essentially argued that all those other reasons not related to race just provides an illusion of inclusion. A win for Comcast will make it too hard for victims of discrimination to even bring a case.

I think Comcast will win this particular battle, but that doesn’t mean the war is complete. 

The justices aren’t deciding whether Comcast discriminated against Allen on the basis of race; rather, it is deciding how Allen must plead his case in order to proceed with his discrimination claim.

And once it decides that, Allen will have the recipe for whether and how he may proceed with his case. 

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Oct. 10, 2017, file photo, the Supreme Court in Washington, at sunset. 

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