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For quite some time, there’s been an esoteric debate running in intellectual property circles as to whether copyright infringement is best characterized as thievery. Those arguing against the proposition generally make the point that piracy is not stealing because the owner is not deprived of using the work. Under this view, copyright infringement is more tantamount to trespass. On the other side are those who think it matters not that intellectual property is an intangible something incapable of being physically controlled. To quote President Joe Biden, “Piracy is flat, unadulterated theft, and it should be dealt with accordingly.”
Thanks to some quirks in the U.S. Constitution, this debate may no longer be purely academic. This week, a photographer who literally risked his life capturing an aerial view of the city of Houston gave the Supreme Court the opportunity to settle this argument once and for all.
First, some background.
It’s near impossible to sue a government entity — especially a state actor — for copyright infringement. That was confirmed last year by the high court in a case over how North Carolina posted without permission a production company’s footage of an 18th century pirate ship. In Allen v. Cooper, Justice Elena Kagan and her colleagues pointed to the 11th Amendment to the U.S. Constitution, where federal courts are prohibited from entertaining lawsuits from citizens against states, and ruled ineffective Congress’ mid-1990s attempt to abrogate such immunity in the intellectual property context.
But maybe there’s a way. Rick Allen, the litigant in the above case, is now proceeding on the claim that what North Carolina did was a violation of the Takings Clause of the Fifth Amendment. That’s the part where citizens can’t be deprived of property without just compensation.
Meanwhile, Jim Olive has been involved in a similar fight.
The photographer rented a helicopter, hired a pilot, and suspended himself in air using a harness. He then took a series of aerial photographs of Houston and then sold those images through his company’s website.
Olive later sued when the University of Houston took his skyline shot to promote its business school. The image was removed from the university’s website upon Olive’s demand, but the school refused to compensate him. That qualified as an unconstitutional taking, Olive claimed.
In June, the Supreme Court of Texas disagreed.
“Infringement of a copyright… is different than a typical appropriation of tangible property where rights are more closely bound to the physical thing,” the justices noted. ” In a per se taking, the government’s ‘appropriation of property’ means the property was ‘actually occupied or taken away’ from the owner. It is an`actual taking of possession and control’ by the government. But an act of copyright infringement by the government does not take possession or control of, or occupy, the copyright.”
In other words, the Texas Supreme Court basically sided with those arguing that piracy is not technically stealing because the owner is not deprived of using the work. It rejected Olive’s argument that the deprivation of the exclusive right to control his work is comparable to a physical appropriation of tangible property.
A cert petition to the United States Supreme Court aims to challenge such assessment.
Olive’s company, the petitioner, demands that conclusion be shredded based upon a high court opinion, Cedar Point Nursery v. Hassid, which was delivered just days after the decision at the Texas Supreme Court. (Given the request and timing of this petition, there may be a small possibility that the justices could take a swing at this Texas decision without even holding a hearing).
Based on Chief Justice John Roberts’ emphasis in Cedar Point Nursery that the “right to exclude” is centrally important in property rights, Olive believes that the Texas Supreme Court got it wrong when holding that intangible property was incapable of a “per se” taking under the Fifth and Fourteen Amendments.
“Because the ‘right to exclude’ everyone, including the government, from the use of copyrighted materials is the core property interest granted by the Copyright Act, Cedar Point Nursery establishes that Respondent’s invasion of Petitioner’s exclusive domain over his copyrighted work is a per se violation of the Takings Clause,” states Olive’s petition (read in full here).
Will the justices agree? The high court tackles relatively few cases, although this one is certainly a well-trodden path given the high court’s confirmed recent interest in the subjects at hand. Now, just maybe, the high court may trespass on a debate that’s been raging among those looking to frame the narrative around intellectual property. Stay tuned.
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