Here's the latest - a cert petition in a case (and an issue) we've been following that asks can a government action that is a violation of copyright also be a taking?
Bynum wrote, researched, and edited a book, a biography of Texas A & M's famed "12th Man" of the football squad. During his research, he met with officials from the university's athletic department and later emailed them a "PDF of the full book," noting that it was not final and only for the recipient's review.
Next up, trouble: the official (allegedly) "directed his secretary to re-type the Biography and to remove any reference to Bynum of to Epic Sports' copyright information. [The official] rewrote the PDF's byline to [indicate that another author had written the book] and changed the title. And "[o]ver the next 72 hours, the Department disseminated the full Biography to hundreds of thousands of recipients" and posted it on the school's website, Tweeted a link to the book, and quoted from the book.
Bynum was not happy. Eventually, the school removed the book from the website. But not good enough (cat was out of the bag), so Bynum sued in federal court for copyright violations and for a taking. The district court dismissed.
When the Fifth Circuit got the case, it affirmed. Copyright violations are trespasses (torts) and not takings, and Texas is immune from takings suits in federal court.
Here are the Questions Presented:
After this Court’s decision in Allen v. Cooper, 140 S. Ct. 994 (2020), damages remedies for copyright infringements by state governments depend on either showing an actual constitutional violation (as well as a statutory one) under United States v. Georgia, 546 U.S. 151 (2006), or—perhaps—asserting a free-standing takings claim under the Fifth and Fourteenth Amendments. The Fifth Circuit’s categorical rejection of both these avenues in this case raises three questions:
1. Can copyright infringement constitute an actual constitutional violation on a takings theory or, as the Fifth Circuit held, is infringement never a taking?
2. Is a hypothetical state remedy that state courts have never recognized sufficiently “clear and certain,” Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 587 (1995), to prevent an actual due process violation?
3. Does state sovereign immunity bar takings claims altogether, notwithstanding this Court’s holding in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), that the Takings Clause mandates a compensatory remedy in federal court?
Stay tuned. We'll keep watching.
Petition for a Writ of Certiorari, Canada Hockey, L.L.C. v. Texas A & M University Athletic Dep't, No. ____...
