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Amicus Curiae Briefs in Cases That Raise Issues of Concern to the Nation’S Business Community

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Amicus Curiae Briefs in Cases That Raise Issues of Concern to the Nation’S Business Community No. 18-877 IN THE Supreme Court of the United States ______________________ FREDERICK L. ALLEN, ET AL, Petitioners, v. ROY A. COOPER, III, 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 COPYRIGHT ALLIANCE AND THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICI CURIAE IN SUPPORT OF PETITIONER _____________ Daryl Joseffer Beth S. Brinkmann Michael B. Schon Counsel of Record U.S. CHAMBER Ronald G. Dove, Jr. LITIGATION CENTER Robert N. Hunziker 1615 H Street, NW Daniel G. Randolph Washington, DC 20062 (202) 463-5337 COVINGTON & BURLING LLP One CityCenter Counsel for the Chamber of 850 Tenth Street, NW Commerce of the United Washington, DC 20001 States [email protected] (202) 662-6000 Counsel for The Copyright Alliance August 13, 2019 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii INTERESTS OF AMICI CURIAE .............................. 1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................ 2 ARGUMENT ............................................................... 6 I. Exemption of State Actors from Infringement Liability Undermines the Economic Incentive of Copyright and the Exclusive National Right of Creation. ................ 6 II. The CRCA Remedied a Pattern of Escalating Copyright Infringement by States that Supports Abrogation Under Both the 14th Amendment and Article I. ........... 9 A. Congress Passed the CRCA Based on a Record of Escalating Infringement by State Actors. .......................................... 10 B. Congress Accurately Predicted Further Escalation of Infringement by State Actors. .......................................... 12 C. The CRCA Constitutes a Tailored Remedy for a Limited Range of Conduct. ...................................................... 18 CONCLUSION .......................................................... 22 i TABLE OF AUTHORITIES Page(s) Cases Airframe Sys., Inc. v. L-3 Commc’ns Corp., 658 F.3d 100 (1st Cir. 2011) ................................ 19 Ass’n of Am. Med. Coll. v. Cuomo, 928 F.2d 519 (2d Cir. 1991) ................................. 20 Ass’n for Info. Media & Equip. v. Regents of the Univ. of California, No. 2:10-CV-09378-CBM, 2012 WL 7683452 (C.D. Cal. Nov. 20, 2012) ...................... 15 Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) ................................. 17 BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129 (11th Cir. 2007) ............................ 19 Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012) ................. 15 Chavez v. Arte Publico Press, 157 F.3d 282 (5th Cir. 1998) ................................ 18 City of Boerne v. Flores, 521 U.S. 507 (1997) .......................................... 9, 18 Daboub v. Gibbons, 42 F.3d 285 (5th Cir. 1995) .................................... 9 ii Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) .............................................. 19 Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) ...................................... passim Fodor v. Los Angeles Unified Sch. Dist., No. CV-12-08090-DMG, 2013 WL 12130260 (C.D. Cal. Mar. 1, 2013) ...................... 15 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ................................................ 6 Goldstein v. California, 412 U.S. 546 (1973) ............................................ 3, 8 Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) ................................ 20 Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) ...................................... 4, 9, 12 Oracle Am., Inc. v. Oregon Health Ins. Exch. Corp., 145 F. Supp. 3d 1018 (D. Or. 2015) ..................... 16 Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) .................................... 18, 19 Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180 (1997) .............................................. 10 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ............................................ 3, 6 iii United States v. Anderson, 741 F.3d 938 (9th Cir. 2013) ................................ 19 United States v. Comstock, 560 U.S. 126 (2010) .............................................. 10 Statutes 17 U.S.C. § 101 .......................................................... 19 17 U.S.C. § 102(a) ...................................................... 18 17 U.S.C. § 102(b) ...................................................... 19 17 U.S.C. § 107 .......................................................... 20 17 U.S.C. § 108 .......................................................... 21 17 U.S.C. § 110(1) ...................................................... 21 17 U.S.C. § 110(2) ...................................................... 21 17 U.S.C. § 110(6) ...................................................... 21 17 U.S.C. § 110(8) ...................................................... 21 17 U.S.C. § 504(c)(2) .................................................. 21 Other Authorities 4 Nimmer & Nimmer, Nimmer on Copyright § 13.01[B] ............................................ 19 iv Copyright Clarification Act: Hearing on S. 497 Before the Subcomm. on Patents, Copyrights, and Trademarks of the S. Comm. on the Judiciary, 101st Cong. III (1989) .................................................................... 11 Hearing Before the S. Judiciary Comm., 107th Cong., 2d Sess. (2002) ................................. 7 Hearing on Sovereign Immunity and the Protection of Intellectual Property Before the Senate Judiciary Comm., 107th Cong., 2d Sess. 91 (2002) ........................... 13 Hearings on H.R. 1131 Before the Subcomm. on Courts, Intellectual Property, and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. III (1989) ...................................................... 7 S. Rep. No. 101-305 (1990) ............................ 12, 13, 14 U.S. Const. art. I, § 8, cl. 8 ...................................... 6, 8 U.S. GEN. ACCOUNTING OFFICE, GAO-01- 811, INTELLECTUAL PROPERTY: STATE IMMUNITY IN INFRINGEMENT ACTIONS (2001) .............................................................. 16, 17 v INTERESTS OF AMICI CURIAE1 The Copyright Alliance is dedicated to promoting and protecting the ability of creative professionals to earn a living from their creativity. It is a nonprofit, nonpartisan 501(c)(4) public interest and educational organization. It represents the copyright interests of over 1.8 million individual creators and over 13,000 organizations across the entire spectrum of creative industries, including graphic and visual artists, pho- tographers, writers, musical composers and recording artists, journalists, documentarians and filmmakers, and software developers, as well as the small and large businesses that support them. The Chamber of Commerce of the United States of America (“U.S. Chamber”) is the world’s largest busi- ness federation. It represents 300,000 direct members and indirectly represents the interests of more than three million businesses and professional organiza- tions of every size and in every sector and geographic region of the country. An important function of the Chamber is to represent the interests of its members in matters before Congress, the Executive Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases that raise issues of concern to the Nation’s business community. 1 Pursuant to Supreme Court Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part, that no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief, and that no per- son other than amici, their members, or their counsel made such a monetary contribution. Counsel for all parties consented to the filing of this brief. 1 What unites the individuals, small businesses, and other companies that make up The Copyright Al- liance, as well as the millions represented by the U.S. Chamber, is their mutual reliance on copyright law to ensure that they have the opportunity to receive just remuneration when their copyrighted works are used by others. This requires a copyright system that al- lows a creator to seek redress in court, regardless of whether the infringement of the copyright is perpe- trated by a State or by a private actor. The Copyright Alliance and U.S. Chamber thus have a significant in- terest in ensuring that creators are not thwarted by an uneven playing field that Congress sought to level. INTRODUCTION AND SUMMARY OF ARGUMENT Congress enacted the Copyright Remedy Clarifi- cation Act (“CRCA”) in 1990 to promote the goals of copyright and to remedy a due process harm. More specifically, Congress eliminated a fundamental un- fairness in the operation of our copyright law by which States could avail themselves of copyright remedies against others, including monetary damages for in- fringement, but could block private parties from doing the same against them. Congress sought to ensure, consistent with Con- gress’s authority under the Intellectual Property Clause of Article I, that authors would be protected from copyright violations of their works (and would therefore have incentives to continue to create), re- gardless of whether the infringer was a private entity or a State. Congress also acted, consistent with Sec- tion 5 of the Fourteenth Amendment, to document the 2
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