Getting Some Oral — Episode 2

Chris Worden
5 min readFeb 7, 2020

Justice Breyer Ices and Creams Notion that States Can Profit from Bill Murray’s Groundhog Day

Back in December, the Supremes got oral argument in a fascinating clash between the U.S. Congress and our fitty[i] states in a case paralleling only Freddie v. Jason in terms of public sympathy for the respective parties.

In Allen v. Cooper, the nine companions of the Fellowship of the Gavel considered whether 11th Amendment sovereign immunity prohibits a private citizen from suing a state for copyright infringement. For the lay folks, “sovereign immunity” is when states give the dad speech: “I make the rules in this house, and if I want to watch TV with no pants, that’s how it’s going to be!”[ii]

Except it isn’t.

Unfortunately, for states, Article 1, Section 8 of the U.S. Constitution (a/k/athe enumerated powers clause[iii]”) affords Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[iv]

This clause, coupled with the Necessary and Proper Clause of Article 1, Section 18 (giving Congress the authority to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers…”), was the foundation upon which copyright and patent protection were built.[v]

Congress puffed out its chest by codifying (or putting into federal law) the breadth of its authority vis-a-vis the states in 17 U.S. Code § 511, which says neither the 11th Amendment nor any other doctrine of sovereign immunity will protect a state. In the copyright context, Congress basically said a state looks just like a citizen, which was quite a double whammy for New Jersey residents.

Anyway, the hullabaloo arose when North Carolina used photos from researcher Frederick Allen’s decades-long body of work connected to a sunken ship (can you say “nerd”?) for “educational purposes.” North Carolina refused to compensate Allen for his work or abide by his requests to cease and desist.

During oral, North Carolina said Congress had no authority to curtail a Constitutional provision. Boy, it wishes it hadn’t.

The Court’s cantankerous drama queen, Justice Stephen Breyer, was cheesed, and he did what he does best — ask condescending hypothetical questions.[vi] Occasionally, his inquiries are funny despite himself.

Monsieur Breyer asked:

“What if the state decides to do its own (streaming) website, charging $5 or something to show Rocky, Mrs. (sic) Marvel…whatever…Spider-Man, and perhaps…uhh…. Groundhog Day, all right? (Laughter). What’s to stop them?”

I’m pretty sure people were laughing because Breyer thinks Groundhog Day belongs in that list. But it’s an incisive question.

North Carolina’s counsel argued that even though cash wouldn’t be on the table if they won, injunctive relief (when you get a “stop that!” order from the court) was.

But as Breyer promptly rebutted, what good is an injunction if the violator already showed the movie multiple times? In an age of ubiquitous streaming and access to information, an injunction is as valuable as putting chewed gum back in the pack and expecting Candy Heaven to give you a refund.

Also, you have to imagine the machination that might follow if, say, a former chief-of-staff or agency head for a governor were about to release a none-too-flattering tell-all book, and the governor put it up for free on every website in the state. Imagine the prospective financial loss to any author not smart enough to get a solid advance.

Consistent with North Carolina being North Carolina, its contentions were, respectfully, underwhelming, both legally and practically, and they boiled down to two propositions: (1) the federal copyright scheme provides overly generous remedies for infringement, including up to $150,000, even absent a showing of actual financial harm, which would be too burdensome to the state treasuries of America; and (2) only 16 total copyright violations by states have occurred in recent vintage.

An objective observer would find it curious that the paucity of violations gravitates against copyright protection. If there are so few violations, how can there be cataclysmic harm to states (who, by the way, can simply NOT engage in infringement)?

One intriguing question posed by Justice Ginsburg was around the impact of a state acting negligently in the infringement instead of intentionally. After all, copyright protection is always subject to “fair use,” a complex notion without definable parameters on the close calls. It may be a just notion that an unintentional infringement should not have such grievous consequences for a state. In fact, there is a robust debate on whether copyright infringement operates too much like a strict liability tort and should continue as such. But that debate seems ill-suited for North Carolina since it continued its course of conduct long after Mr. Allen made his entreaties.

This is one of those cases that seem insignificant in the grand scheme, but and as if on cue, this week the Walt Disney Company sent a $250 bill to a California grade school because it showed The Lion King at a PTA fundraiser without obtaining permission. The remuneration sought was a third of what the event raised, so I’m pretty sure that PTA was ma-ta ta-ing that hakuna. And we all thought Breyer could be douchey.

[i] “Fitty” is the cool way the old kids who were young kids when 50 Cent said we could “find him at the club” say “fifty.”

[ii] The 11th Amendment says “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The 11th Amendment rivals only the 12th for greatest linguistic snoozefest. In fact, Thomas Jefferson, America’s brown sugar-loving, declaratory poet laureate, used to have the Founding Fathers in stitches when he’d call John Adams’ tedious and pedantic speeches “so 11th Amendment.”

[iii] It means “listed.” Political science professors and constitutional scholars use phrases like “enumerated” because “listed” won’t get them tenure.

[iv] This same clause includes the power to raise taxes and create the post office, prompting many historians to wonder if a few Founding Fathers interested in a strong executive weren’t dropping the first ever shade on Congress.

[v] It was also the clause that wiped out half of America’s music libraries in 2001 because it facilitated lawsuits against Napster. Yes, I dub thee Unforgiven, Metallica.

[vi] In subsequent episodes of Getting Some Oral, I will chronicle the haughty, pedantic phenomenon that is Breyer because it is such a thing to behold. Were immunity given to Supreme Court litigants, he would get coldcocked in every argument, not because he asks rambling, bananas hypotheticals (which he does on the regular) but because he asks them and then disavows interest in his own question or any need to answer because he answers himself. A run-of-the-mill Breyerism might sound like this: “Ok, so bears aren’t people, right? And banjos aren’t people, too…fine. You should know this. So if a banjo-playing bear came in…you get my point…combined, what would you say to THAT…if you want to. You don’t have to. Though I’d recommend it. But it’s up to you. Fine.” Okay, this is admittedly a “dramatic reenactment,” but Breyer absolutely closes more sentences with a tantrum-y “fine” than the other eight justices combined.



Chris Worden

Satirist — Ideator — Creative — Politico — Hip Hop Enthusiast— Attorney