Copyright law issues on U.S. Supreme Court’s next term agenda

While the Supreme Court of the United States (SCOTUS) is on its summer recess, IPKat looks closer at the copyright cases that await it in the next term.

Cases on the Merits

U. S. Supreme Court
In Allen v. Cooper, SOTUS will consider whether Congress, when it enacted the Copyright Remedy Clarification Act (CRCA), had the power to repeal a state’s sovereign immunity from suit for copyright infringement.

The dispute arose from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, which ran ashore at Beaufort, North Carolina in 1718. The shipwreck was discovered in November 1996 by Intersal, a private research and salvage company, which subsequently engaged Nautilus Productions to take pictures and videos of the ship. Nautilus filmed the shipwreck for nearly two decades. A well, it registered copyright for the resulting videos and still images.

The State of North Carolina and its Department of Natural and Cultural Resources (DNCR) copied and publicly displayed Nautilus’s works without authorisation, this  by uploading and posting them online. The parties reached a settlement agreement. However, the state nevertheless resumed its infringing activity in both online and print formats, claiming that it is insulated from liability  because of the so-called “Blackbeard’s Law”, which effectively converted Nautilus’s works into “public record” materials that can be freely used by the state, thereby depriving the copyright holder of any remedy.

Nautilus sued the state in the U.S. District Court for the Eastern District of North Carolina; in turn, the state sought   to dismiss the copyright claim on the ground that the state sovereign immunity provisions of the 11th Amendment  shield it  from suit in federal court. The district court denied the state’s motion, holding that the CRCA abrogated the state’s sovereign immunity from suit.

The U.S. Court of Appeals for the Fourth Circuit unanimously reversed the district court’s ruling (here), concluding that “Nautilus’s copyright claims against the North Carolina officials in their individual capacities are precluded by qualified immunity […] [and] that legislative immunity shields the North Carolina officials in their individual capacities for their alleged involvement in the enactment of [“Blackbeard’s Law”]”.

Nautilus filed a petition for certiorari  with SCOTUS, which was granted.  The case is set for argument on the 15th of November.

[See here for Steven Seidenberg’s analysis of this case and of other judicial interpretations of the state sovereign immunity as it relates to intellectual property rights.]

In Georgia v. Public.Resource.Org Inc., SCOTUS has granted certiorari regarding  whether the ‘government edicts’ doctrine,  whereby certain works , such as judicial decisions and statutes, having the force of law,  are excluded from copyright protection. SCOTUS has not addressed this issue since creating the doctrine  in the 1800s.

In its petition, the State of Georgia asked to review  the decision  of the U.S. Court of Appeals for the Eleventh Circuit, which held  that no valid copyright can subsist in annotations consisting of materials such  as summaries of judicial decisions and state Attorney General opinions, as they appear in the Official Code of Georgia Annotated (OCGA). Georgia had contracted a private party, the LexisNexis Group to provide annotations to the statutory law,  and claimed copyright ownership in the resulting OCGA. However, the Georgia General Assembly “has stamped them “official”, choosing  to make them  an  integral part of the official codification of Georgia’s laws”  by creating a single unified edict which, in  the court’s opinion, “is attributable to the conclusive authorship of the People”.

The opposing party is Public.Resource.Org Inc. (PRO), a non-profit organisation, which purchased all the current volumes of the print version of the  OCGA. It then scanned and uploaded them to its website to be freely available to the public. The respondent highlights a twofold issue at stake:

Our copyright system’s twin goals are to promote creation of useful works and their dissemination to a wide audience. But the courts have long ruled that governments need no incentive to create the law. In issuing edicts of government, officials act as agents of the People, in whose name the edicts are issued.
The parties will  now  each  file its  respective brief on the merits.

Call for the view of the Solicitor General

The much-awaited Google LLC v. Oracle America Inc. case has now been referred to the Solicitor General to file a brief in this case,  expressing the views of the United States. The questions presented are: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

See IPKat’s post here for more insights of this case.


The most recent petition that still awaits a decision on whether to grant certiorari has been filed in a case between VHT Inc. and Zillow Group. SCOTUS is asked to clarify a ‘volitional conduct’ requirement in making a determination whether a party may be held liable for direct copyright infringement.

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Copyright law issues on U.S. Supreme Court’s next term agenda Copyright law issues on U.S. Supreme Court’s next term agenda Reviewed by Ieva Giedrimaite on Tuesday, August 20, 2019 Rating: 5

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