Following up on the Supreme Court's decision last year in Allen v. Cooper that States can commit copyright infringement with impunity (until Congress does something about it),[ref]Supreme Court Rules States Have Sovereign Immunity From Copyright Infringement Suits: Is Your State Government the Next "Pirate Bay"?[/ref] a novel legal theory proposed by Texas photographer Jim Olive to reign in States that infringe has met the same fate. The case, Olive v. University of Houston,[ref]Case No. 19-0605 Supreme Court of Texas; 2021 U.S.P.Q. 2d 661 (Tex. 2021)[/ref] was decided June 18, 2021 by the Supreme Court of Texas. Wait. A State Court deciding a copyright infringement case? Why isn't this in Federal Court? Because Olive did not allege copyright infringement. Instead, he argued that the infringement of his photograph by the University of Houston was an unlawful taking of his personal property by the government of Texas, in violation of the 5th Amendment of the U.S. Constitution and Article 1, Section 17 of the Texas Constitution. The Texas Court of Appeals rejected the contention stating that "the government interference with property rights alleged here-does not state a viable takings claim, but is akin to a transitory common law trespass for which the state has not waived its immunity."[ref]580 S.W. 3rd 360 at 376[/ref] More about this later. For its part, the Texas Supreme Court dithers around whether a copyright is a type of property that can invoke the constitutional protections of the takings clause. Ultimately it decides that it needs not settle this question because the copyright infringement didn't "take" anything. In sum:
  • "Infringement by the government does not necessarily destroy any of the copyright owner's rights in the copyright. It does not deprive the copyright owner of the right to possess and use the copyrighted work."[ref]Case No. 19-0605 at 9[/ref]
  • The infringer "does not assume physical control over the copyright; nor does he wholly deprive the owner of its use."[ref]Id.[/ref]
  • "The government's infringement also does not deprive the copyright owner the right to dispose of the copyright. Because the copyright is nonrivalrous, the governments use of the work ‘does not prevent the copyright owner…from licensing others to use it." (citation omitted)[ref]Id.[/ref]
If this sounds familiar, it's because it's the same old tired excuses for piracy that we have been listening to for years: e.g. "if I take your book, you no longer have a book, but if I simply copy your book, you still have your book." Never mind that you now have a copy of my book, a valuable piece of property, that you paid nothing to acquire, in violation of my "copy-right." Not to mention the fact that all State universities are arms of the State government in which they reside. As of April 2021, there were 1,625 public universities in the United States.[ref]A Guide to the Changing Number of U.S. Universities[/ref] If all of them now have a "free pass" to infringe my work, then my copyrighted work may indeed become worthless, an event the Texas Supreme Court fairly scoffs at. Especially if a State university decides to take the bold step that since it cannot infringe my copyright by copying it, it can now sell "home-made" copies or freely license my work as well. But no worries, says the Texas Supreme Court, the copyright holder still has the right to sue for injunctive relief to prevent ongoing infringements by these State entities,[ref]Citing Seminole Trobe of Florida v. Florida 517 U.S. 44 (1996)[/ref] a remedy that is so time consuming and expensive, that in the absence of monetary damages, it becomes no "remedy" at all. But let's get back to the Court of Appeals "transitory common law trespass" theory. Way back when in 1976, it was discovered that a woman by the name of Elizabeth Ray was a paid staffer of a U.S. Congressman. Nothing about this would be unusual, except that her sole obligation as a paid staffer was to have sex with the Congressman.[ref]Closed Session Romance on the Hill[/ref] "‘I can't type, I can't file, I can't even answer the phone,' says Elizabeth Ray, 27, who began working for Hays in April 1974 as a clerk. Since then, Ray says she has not been asked to do any Congress-related work and appears at her Capitol Hill office once or twice a week for a few hours."[ref]Id.[/ref] So, let's transport this situation down to Texas, and to further cover his tracks, the Texas State representative ensconces his "staff mistress" at a friend's condominium, without permission, knowing that the condo is a vacation home, and the friend will not return for another eight months. When the friend finds out, he is incensed. He demands a fairly high-priced rent. He is refused. What is the remedy here for this "involuntary Airbnb"?[ref]Thanks to my colleague David Newhoff for coming up with this bon mot[/ref] According to the logic of this decision, none. The State actor did not take possession of the condo to the detriment of the owner. The owner wasn't using it. He got it back. In good condition. Sounds like "a transitory common law trespass for which the state has not waived its immunity." All he lost out on was a little rent. He still has his condo. Just like, all the copyright owner lost was the license fee, but still has his copyright. Is this fair? Are we going to let loose State actors to have free-reign to infringe copyrights, just because they can? Until Congress does something, the answer is "yes."