Allen v. Cooper (18-877)

argument 18-877

Allen v. Cooper

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What constitutional authority does Congress have to enforce exclusive copyright rights against states?

John G. Roberts 0:01

Well your argument next in case eighteen eight seventy seven, Allen

Joseph H. Schaefer 0:05

versus Cooper. Mr Schaefer. Mr Chief Justice, and may it please the court. 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. Article I, Section eight, Clause Eight, what we're calling the Intellectual Property Clause, is unique within Article I in laying down an express constitutional mandate for Congress to protect specified private property rights against any and all intrusion. Consider just how pointed and clear the Constitutional text is.

Joseph H. Schaefer 0:49

Congress is not only to be granting copyrights, but securing them. And the resulting rights, by definition, are meant to be exclusive rights exclusive against whom, Your Honours, exclusive against all comers, exclusive against the world, including the government and including states. And this exercise of congressional power serves the express constitutional purpose to promote progress. How? By affording monetary recompense to copyright holders. The framers thus made very clear that all those wanting to use an author's copyright are meant to be paying money for doing so. This clause's text signals a plan of the Convention waiver like no other in Article one. For states to retain immunity to avoid paying for infringing the very same exclusive rights that Congress is meant to secure would be incompatible with the text, as fixed and understood by the framers.

Joseph H. Schaefer 1:45

And this Court has already so recognized in substance, going back to 1888 in United States v. Palmer, the Court said in holding the Federal Government monetarily liable for infringing patents, that Congress's power, the same power we were is talking about could not be affected if the government had a reserve right to infringe. Same reasoning holds for states, Your Honors. And in Goldstein v. California in nineteen seventy three, the court said, and again in disc here discussing copyrights, when Congress grants an exclusive right or monopoly, its effects are pervasive. No citizen or state may escape its reach.

Unknown 2:20

And highly persuasive if we didn't have patent decision, the Florida prepaid decision, it is the very same clause, it's the very same secure, it's the very same exclusivity.

Joseph H. Schaefer 2:34

Correct, Justice Ginsburg, but but the Court was not examining the text. The Court was not examining the clause. In fact, it didn't even grant review on the question whether the Article I basis for the Patent Remedy Act would be a valid basis. That wasn't before the court, it wasn't even raised before the court. And so all the court did, Justice Ginsburg, was refer back to seminal tribe. the the sweeping assumption of Seminole Tribe that no Article I clause could ever supply basis for abrogation, that's the same assumption that the Court encats more recently does called dicta and held to be erroneous dicta, an erroneous assumption, which is the only way that the Court was able to analyse the specifics of the bankruptcy clause and find that it did reflect a plan of the Convention waiver on a basis for opportunity.

Unknown 3:22

That's the the Court concentrated on the bankruptcy authority as a unique authority. We have seminole which is across the board and then we have the exception for the bankruptcy clause. Now are you asking us to go through all of the Article three authority and take them one by one? Isn't cats more properly read as a bankruptcy exception to the Seminole Tribe Rule?

Joseph H. Schaefer 3:53

Your Honor, we rely upon the methodology of cats. We rely upon the upfront holding of cats. We take it to be a holding that in fact what Seminole Tribe had said about no Article I power supplying a basis for abbreviation, that that was dicta and that was an erroneous assumption. In fact, the relevant portion of Seminole Tribe, as both the majority and the dissent in that case recognized, it dealt with the copyright clause and the bankruptcy clause and the commerce power.