What if Copyright Law Does Not Protect Against Theft by State Actors? Many Americans expect that our copyright laws were enacted to protect their creative output. This is true when it comes to individual pirates. However, it is no longer the case when a state actor is the one stealing a copyrighted work, as evidenced by the following illustrative examples of state copyright infringement. A. Michael Bynum By way of illustration, consider the struggle of author Michael Bynum to protect his written work from online piracy by a state university. Bynum is an author and editor of numerous sports history books. He also owns a publishing company. He invests time researching, collecting and reviewing documents, conducting interviews, and editing content created by writers
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What if Copyright Law Does Not Protect Against Theft by State Actors?
Many Americans expect that our copyright laws were enacted to protect their creative output. This is true when it comes to individual pirates. However, it is no longer the case when a state actor is the one stealing a copyrighted work, as evidenced by the following illustrative examples of state copyright infringement.
A. Michael Bynum
By way of illustration, consider the struggle of author Michael Bynum to protect his written work from online piracy by a state university. Bynum is an author and editor of numerous sports history books. He also owns a publishing company. He invests time researching, collecting and reviewing documents, conducting interviews, and editing content created by writers he employs on a work-for-hire basis. His work ultimately led him to begin researching Texas A&M University.6
Michael Bynum wrote a book about Texas A&M, Aggie Pride, and subsequently became intrigued by the story of E. King Gill, an A&M legend who influenced the school’s “12th Man” credo. In fact, he became so intrigued that he began to research the 12th Man tradition for an independent book project by him and his publishing company.7 The passion of the A&M community for all things 12th Man indicated there was a market for such a book and in the 1990s, Bynum began his work. He extensively reviewed documentation, visited significant locations in Gill’s life, and conducted interviews with members of the Texas A&M Athletic Department.8 Bynum ultimately hired a writer to write a biography of Gill that he planned to use as the first chapter of his new book. In 2006, Bynum asked personnel at the Texas A&M Athletic Department to proofread the chapter, and they agreed to do so. A few years later, in 2010, Bynum again communicated with Athletic Department staff and sent in another copy of the chapter, which included a statement of Bynum’s copyright ownership.9
Bynum planned to release his book via his publishing company in the fall of 2014, and in conjunction with the 75th Anniversary of the Aggies’ 1939 championship season. Before he could publish the book, however, the Texas A&M Athletic Department published a near verbatim copy of his work and distributed on the internet a link to a digital copy of the book in the University’s e-Newsletter and on its social media accounts.10 Bynum contacted the Athletic Department and received a response acknowledging the “mix-up.”11 But, as things are wont to do on the internet, copies of Bynum’s work continued to circulate by email and on social media long after the University had removed the content. By sharing his work directly with the Texas A&M alumni and football fan communities, the University essentially destroyed the market for Bynum’s work. After all, how many people do you know—even devoted college football fans—who are interested in paying to read about a 1920’s Texas A&M football player?
Understanding the market implications of the Texas A&M Athletic Department’s actions in releasing his book on the internet, Bynum ultimately decided not to publish the book. He then filed a lawsuit against Texas A&M for copyright infringement seeking to recover damages for the economic injury he suffered. In defending itself, Texas A&M asserted a defense of sovereign immunity. In other words, the university is now saying that, since it is an agency of the state of Texas, it can’t be sued.
Put Texas A&M’s legal defense into perspective: The Texas A&M Athletic Department uses U.S. intellectual property laws to protect its own investments, including its investment in developing and profiting from the 12th Man as a registered trademark. It also takes advantage of U.S. courts to sue anyone who may infringe its rights in this trademark. But when an author has his work on the 12th Man published without authorization by the Texas A&M Athletic Department, it claims that it cannot be brought into court to resolve the dispute. Is it fair that a state university can take advantage of the protections of our U.S. intellectual property system as Texas A&M did when it secured a trademark, and even sued people to protect that trademark, but simultaneously refuses to be sued when it misappropriates the intellectual property of others?
B. Frederick Allen
Frederick “Rick” Allen is a videographer with over thirty-five years of experience in documentary production, freelance videography, and underwater video services. Allen exemplifies a key function of the U.S. copyright system. The copyright system has facilitated the rise of an entire professional class of independent creators who support themselves and contribute to our society on the basis of the property rights secured in the fruits of their labors.
In 1998, Allen’s Nautilus Productions company was hired by UNC-TV, in association with the state of North Carolina, to capture underwater video footage of the famous pirate Blackbeard’s Queen Anne’s Revenge, an early 18th century shipwreck discovered off the coast of North Carolina. Despite entering into an agreement in which he expressly retained copyright in his video footage, Allen discovered in 2013 that his footage had been uploaded to the North Carolina’s Department of Natural and Cultural Resources website without his authorization. After Allen notified them of the infringement of his copyrighted video footage, North Carolina compensated him. But two years later, North Carolina passed a law that immunized it from being sued for copyright infringement by officially converting copyrighted works like Allen’s video footage into a public record. Embracing the piracy of Allen’s work, North Carolina even went as far to name it “Blackbeard’s Law.”
Not long after the law was passed, Allen discovered several more of his videos had been uploaded to state websites and he sued North Carolina in federal court for copyright infringement. After a hearing, he won in the trial court. But a federal appeals court—and eventually the Supreme Court—found that a law passed by Congress in 1990 that stripped states of their sovereign immunity for copyright infringement claims was unconstitutional. As a result, North Carolina is immune from Allen’s undisputed legal claim for relief given the unauthorized use of his work by a North Carolina state agency.12
The Supreme Court’s decision left Allen with little recourse for the blatant and intentional theft of his videos. In comments he submitted to the Copyright Office for its study on sovereign immunity, Allen states that “because of current law and Supreme Court precedent, I am powerless to enforce my constitutionally granted intellectual property rights against infringement by States.”13 In addition to the lost licensing opportunities Allen has suffered as a result of North Carolina’s infringement, similar to Bynum’s lost sales opportunities of his book, Allen has incurred hundreds of thousands of dollars in legal expenses seeking to hold the state accountable for its piracy of his copyrighted work. Moreover, the time he’s spent monitoring and responding to this infringement has robbed him of countless hours that he could have spent on his additional creative endeavors.
C. Jim Olive
Over the course of a 50-year career in photography, Jim Olive has captured images that have been licensed for use in print and digital media all over the world. His unique artistic vision often finds him going to great lengths to get the perfect shot, including hanging from a helicopter to capture an iconic shot of the Houston skyline. Unfortunately, he’s experienced substantial theft of many of his copyrighted works over the years.
Most recently, his impressive and difficult-to-capture image of the Houston skyline was used without authorization by the University of Houston. In 2017, he sued The University of Houston, claiming an unlawful taking of his property by a state actor under the Texas Constitution. His decision to pursue a takings claim under the Texas Constitution, as opposed to a straightforward copyright infringement claim, stemmed from his understanding that the University of Houston would invoke sovereign immunity and thus render any copyright infringement claims largely unenforceable. Despite the undisputed fact that the University of Houston used his valid property rights in his photograph without permission and without paying him, the University of Houston still argued that Mr. Olive’s constitutional claim was unenforceable. The Court of Appeals for the First District of Texas agreed with the University of Houston, holding that copyright infringement by a state agency or official does not constitute an illegal taking of property under either the Texas or U.S. constitutions.14
Olive’s legal case continues, as he has appealed the ruling to the Texas Supreme Court, which has agreed to hear the case. But Olive’s experience is testament to the fact that even pursuing alternative claims at a state level when one’s copyright has been infringed is a risky proposition. Many state courts will not recognize intellectual property theft as a constitutional taking and thus meaningful legal remedies remain unattainable to copyright owners suffering piracy of their life’s work. Even worse, Olive has yet to be compensated for the infringement of his copyrighted photograph, and, like Allen, he has spent unnecessary, extensive money and time in litigation in seeking redress for the undisputed violation of his rights by the state.