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Monday, March 23, 2020

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Justice Kagan writes for a clear six (herself, the Chief, Alito, Sotomayor, Gorsuch, Kavanaugh). Justice Thomas writes an opinion concurring in part and concurring in the judgment. Justice Breyer (joined by Justice Ginsburg) writes an opinion concurring in the judgment. But the labels on the separate opinions are confusing. 

Thomas labels his opinion  "concurring in part and concurring in the judgment," while saying in the first paragraph that he "cannot join the Court’s opinion in its entirety."

A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority's reasoning and path to the judgment.

Thomas identifies three points of disagreement and pieces with which he does not join: 1) The standard for stare decisis (the majority demands a special justification, while Thomas believes precedent can be overruled if is demonstrably erroneous), although everyone agrees that controlling precedent should not be overruled under either standard; 2) the majority's advice to Congress about how it can enact a valid abrogation, which is dicta; and 3) whether copyrights are property for due process purposes, a point the parties stipulate in this case. None of these points affected how the majority reached its conclusion. It thus makes no sense to label this a concurrence in the judgment; Thomas joined (or appears to have joined) all the parts of the opinion that led to the judgment. This should be a concurring opinion, with Thomas providing a seventh vote for the majority.

Breyer labeling his opinion as concurring in the judgment seems strange for a different reason. He agrees that Florida Prepaid resolves the case, although he disagrees with the Court's sovereign-immunity doctrine (for reasons described in his dissents in several of those cases, which he string cites). And writing on a clean slate, he believes abrogation is proper. But the majority opinion resolves the case as Breyer believes it must be resolved--applying Florida Prepaid. It thus seems the appropriate approach would have been to join the Kagan opinion but to write the opinion he did as a concurring opinion (not concurring in the judgment). It seems odd to concur in the judgment but not provide an alternative explanation or analysis for that judgment beyond "what the majority said, with which I disagree but with which I am stuck."

This seems like a half-measure version of Justices Brennan and Marshall in death-penalty cases. They dissented from every summary disposition and cert. denial on the grounds that capital punishment violates the Eighth Amendment, refusing to follow established precedent and insisting the case should come out the other way. Breyer wants to follow precedent, even precedent he sees as wrong. But that means he agrees with the majority's analysis applying controlling precedent, even if he would prefer to reject that precedent.

So at the end of the day, this is a 9-0 case--everyone agreeing that the statute is invalid in light of Florida Prepaid and three Justices expressing different views about the doctrine or pieces of the majority's analysis.

Finally, during SCOTUSBlog's live blog of opinions, Tom Goldstein identified a "generational divide" among the Court's liberals. The old guard of Ginsburg and Breyer--who were on the Court and dissented when this abominable line of precedent developed--continue to reject the doctrine. The new guard of Sotomayor and Kagan (who wrote the opinion) accept the current legal regime as correct. It is an interesting idea. Although query whether they regard it as correct as much as they recognize they are stuck with it and do not have the skin in the game to point to past dissents, as Breyer does.

Posted by Howard Wasserman on March 23, 2020 at 04:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


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Posted by: Vheideknecht | Apr 3, 2020 7:22:47 AM

Drew, as someone else posted above, 28 USC 1498 would require the federal government to pay compensation if it produced a patented vaccine. But the decision (or, more precisely, the Florida Prepaid decision) probably does mean that Cuomo could get NY state to start producing a patented vaccine if one were to be found. Though patent law is the least of our problems right now because, if a vaccine is found, it would probably take well more than a year for the patent office to issue a patent on it, and until the patent issues everyone could use the vaccine without infringement.

Posted by: TJ | Mar 25, 2020 2:37:56 AM

Drew: Patents are not copyrights. And there is a specific federal statute dealing with the federal government infringing patents. 28 U.S.C. § 1498.

Posted by: John | Mar 24, 2020 4:36:38 PM

Does this mean that the government could produce its own Covid-19 vaccine even if some company has patented it?

Posted by: Drew McCormick | Mar 24, 2020 2:17:32 AM

I don't think I agree about what it means to concur vs. concur in the judgment. At the Court, at least, Justices writing separate opinions generally "concur" in full, as opposed to in part or not in part and solely in the judgment, when they join the majority opinion in full but wish to explain why they join or add some extra thought not contained in the opinion (or to purport to explain the opinion, etc.). Thomas can't join some of that opinion, so he concurs only in part with it. It doesn't matter, under their conventions, that the parts he's joining are arguably dicta. That said, even on your definition of what it means to concur, I'm not really sure if the Court's path to giving Florida Prepaid stare decisis effect isn't a part of the opinion that led to the judgment. The majority, as I understand it, just thinks there's a lack of special justification for departing from Florida Prepaid, and, on the basis of the principle that there must be, applies it; Thomas applies Florida Prepaid because he thinks the petitioner hasn't demonstrated it's wrong, which is perhaps just north of him being barely convinced it is wrong. I don't follow why the majority's deployment of its understanding of stare decisis to follow Florida Prepaid isn't a part of the opinion that led to the judgment. For all one can tell, but for a strong view of stare decisis the majority, or at least some of its members, would come out differently.

Posted by: Asher Steinberg | Mar 23, 2020 6:41:33 PM

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