your argument next in case eight hundred and seventy seven dollars allen versus cooper mr schieffer 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 a 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 an acting the c r c a article one section eight what we're calling the intellectual property clause is unique within article one 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 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 hono 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 rican pens 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 as 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 in understood by the frame and this court has already so recognized in substance going back to one thousand eight hundred and eighty eight united states v palmer the court said in holding the federal government monetary liable for infringing patents that congress's power of the same power we were just talking about could not be affected it's the very same secure it's the very same exclusivity correct justice ginsburg but the court was not examining the tax the court was not examining the clause in fact it didn't even grant review on the question whether the article one 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 sued all the court did justice ginsburg was referred back to seminole trial for the sweeping assumption of seminole tribe that new article seminal which is for us the board and then we have the exception for the bankruptcy clause now you ask us to go through all of the articles we and take them one by one a holding that in fact what seminole tribe had said about no article one power supply a basis for aberration 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 about the bankruptcy clause it's the same sentence as justice kagan it's the scene exact question of the seminole tribe that dealt with all article one clauses in the same breath and in fact in justice stevens dissent and i think it was the st footnote of it he noted that the semin decision by its terms would apply to the commerce would apply to the copyright clause and to the bankruptcy clause and justice rehnquist i think ins in chief justice rehnquist in footnote sixteen i think engaged that assumption and said yes essentially no big deal but that is the necessary upshot of the seminole tribe holding as it was articulated by the court and that's why i think you can catch this court had to deal right upfront with whether that assumption held or not and it rejected it is erroneous but justice ginsburg justice  assure the court there is no other clause in article one like this one there is no other clause that is as pointed there is no other clause that contemplates that there will be private property right if you are regularly right if you are right we would then have to go back to florida prepaid right and topple that rule and it would be certainly open to folks in patent cases to make that argument you know how could i could we have the two rules go on simultaneously that would be my prediction my prediction is that ultimately the patent remedy act would be revisited and properly upheld as a valid exercise of exercise of congress's article one so basically you're asking us to overrule florida prepaid i'm asking this court to follow katz justice alito where i think florida prepaid was overruled in relevant part and certainly you think cats over world florida prepaid i think it over or over ruled the basis for florida prepaid if the presidential foundation for florida prepaid was soley the relevant portion of seminole tribe that's exactly what the court was it was i think calling  considered independently and florida prepaid may hold on for a while as a poorly reasoned exception to that rule but ultimately would have to be overruled to bring it in line with the position you're asking us to adopt today i have only one friendly and then into your honour's assumption which is i don't think that there is any other article one clause that reflects the plan of the convention waiver in the sense that we're discussing in terms of the constitutional untaxed and the necessary implications of it because for the reasons this court has already recognized we think it is totally incompatible with the framers text and the framers contemplation to say that there is any such thing as an exclusive private property right secured by the united states congress that states are free to infringe without paying i think that would have been antithetical to the framers conception that's a respectful submission on article one and if the court doesn't have other questions about that you think florida prepaid is subject to our usual started sosa's rules or not well just kavanagh obviously the court will decide what is its process and we read florida prepaid as not having really a address this question i don't think florida prepaid reached a holding on the article one point because question was not before the court presented and without any party arguing the question which is why i would respectfully question whether it's truly a holding justice cavanagh but what if it was a holding it was just as your honor articulated it based soley on the seminole tribe the very same aspect of seminole tribe that read the court is revisiting and overruling in cats but the court will decide the status of its process and if he has any qualms about the article one basis for the c r c i would ask the court to sustain the c r c and the strength of the  to grant relief to state prisoners so that's a clear intrusion on state's i don't see the same thing in the intellectual property provision in fact for two hundred years there was concurrent state in federal jurisdiction that seems to cut against your argument that somehow the founders thought that this was an exclusive federal right just take those in turn just a sort of m would have signaled more clearly and concurrent jurisdiction for over two hundred years i think these are textual basis for the abrogation is stronger than it was in cats and cats as you say there are i don't think it was in the bankruptcy clause the plan of the convention  jurisdiction that was not about monetary relief against states that was not about hauling states into federal court it was just about granting relief he gave us relief to get prisoners out of state prison i don't think that that's anywhere near is on point is what you have with the intellectual property clause where clearly the framers contemplation is these are exclusive rights that anyone who may infringe has to pay for congress job is to secure those rights cannot do that without abrogating state sovereignty or so even as discreetly the latter part else in art of some would say that injunctive relief promotes progress with james madison it damages question that's not an issue of what promotes the arts james madison's conception reflected in the text of what the manali monopoly would achieve is that the authors and inventors would get paid for their inventions they would get paid for their creations and is the court as i indicated back in nine hundred and eighty eight dollars recognized is antithetical to that to say that government of any kind certainly the federal government can infringe those exclusive rights that congress has to be securing but as the section five of the th amendment iran or this is a case in a legislative record different from what the court had before it in florida prepaid it is much stronger and relevant part in part that's big because the fundamental difference between copyright law at issue in this case and patent law that the court was looking at in florida prepaid in part it's also because you have a legislative record that is so much stronger on it was you had the register of copyrights ralph oman testifying to congress preparing a report based on a fifty state survey and a very conscientious compilation of commons and studies about what was happening to federal copyrights and why this legislation was necessary to protect them but you tell us in your brief when congress and acted the c r c a it have quote sixteen examples over the previous decade of reported state of frenchmen thirteen states is that enough to identify a serious constitutional problem i think so justice alito i think st of all as to the serious constitutional problem you have federal property rights that are have been granted and that are private property rights and states are infringing without paying for that that is a fundamental intrusion that is a fundamental constitutional problem and i think congress if it has a remedy that is conscientiously tailored around that should have as the court put it in city of sixteen examples is more of a muff and the mere fact that their work if there were state infringements doesn't necessarily mean there were state violations or constitutional right we think it follows in the copyright context just as every every infringement has violate every infringement by a state or by the federal government is a constitutional violation the nature of the exclusive intellectual property right is that one will have the right respected role to be compensated for an intrusion that is the nature of intellectual property and for copyright in particular justice alito infringement by definition means someone has copied the protected original violations by doing all sorts of things negligently denying notice denying opportunity be heard spurious welfare cancellation those things that stand procedural due process but there's also a takings basis for this legislation and the court has been very clear that it taking can occur even through regulatory taking as in penn central and so if there is a predictable result of a government action that denies someone their protected property rights and does that without compensation that is a th amendment problem submit that that's true in every case but it's certainly true in most cases and the courts been very clear that congress has prophylactic and determined rights under section five and i would also know it is to the sixteen examples that we're talking about those examples are really in the nature of reports justice alito so one of those reports was from the motion picture association of america which said that films are being shown by state prison authorities widely and when that was pointed out to multiple states two of those states came back and said we're going to stand on our  memon sovereign immunity one of those is north carolina one of those states that's one of the episodes that was reported and just two other points about this the report from ralph oh man came in one thousand nine hundred and eighty eight that was three years after the court's decision in so the register was clear the former register was clear and the congress was clear that this was an emerging problem and what they had in the way of examples was within a three year ban different i think that record is stronger than the record in the city of bernie you think that intrusion here is much lighter than the city of bernie here all that states are being held to substantively is the same rule they've been under since the founding don't infringe copyright everyone agrees that that is probably well that may be true but the question is is there greater can grow in some proportionality here than there was and so you burn your maybe that we should reexamine city bernie to that's not i'm not urging that it's ok i'm not urging that i don't think the court needs to re examine that because there isn't the same sort of congress in proportionality problem part of what was it issue i think in city of bernie and rightfully concerned the court is congress was redefining the substantive law it was intruding upon the substantive conduct of states and basically changing the substantive rules of what would constitute a constitutional violation that's not what you have you are respectful justice alito this is congress looking at something that is a cardinal sin it is states infringing federal copyright protected federal property and it's enact in a remedy that is precisely tailored to that states have to pay any private infringer would pay states have to pay what they would insist an infringer of their protected copyrights pay that's all congress was doing in the c r c and i don't think that there should be the same sort of empirical skepticism on the court's part especially given the fact that congress was so clear about why the problem was newly emerging and wide to use the words that are found in the legislative record this was just the tip of the iceberg because copyright holders small businesses individual authors did not have the means did not have the incentive to be going to court and reporting instances of deprivation you said it was inevitably intentional campin but north carolina says that the use of copyrighted works only for educational settlement agreement it's very clear that it need there need to be water marks and time stamps that were on north on any images that north carolina might use that was not on the images they were using when copyright infringement was pointed out to them and they were caught red handed with that they return to infringement the infringement kept up even after the filing the lawsuit that's in the complaint to blackbeard law was then passed by north carolina to make sure that they could get out from under the solomon agreement and they could basically get off the hook for liability for their infringement that too is in the complaint that's defense that north carolina reason a parallel state court suit that pointed to blackbeard law to basically of aid any liability for their copyright infringement and so if you look at the complaint i'd point the court to paragraph seventy three to seventy five into paragraph eighty it is explicit these were intentional uncompensated infringements by the state and that they were unconstitutional in violating both the th amendment and the takings clause m that how do we figure out how much is enough in a legislative record you said these sixteen instances are enough in florida prepaid i believe there were eight instances and we said that wasn't enough now what's the difference between the two i think  eight in heart of it is the fundamental difference between patents and copyrights in florida prepaid the courts dealing with the body of law or states can be totally innocent in their infringement they could independently arrive at an invention they could have no awareness that anyone else came st you're still going to be liable for arrangement copyright law by definition is much more circumscribed a for there to be infringement it requires that the state have to have copied the original expression of someone else absent that we're not talking about economy because you could look at sixteen as a really low number there are fifty states and if sixteen of them infringed once that gets you to sixteen that wouldn't strike me as a major national problem it was reported there were sixteen reports oftentimes of multiple instances of infringement or bad faith conduct by states that's in compas within the sixteen that we're referring to and as to that there were dozens of comments that were received about is this the bigger problem is this an increasing problem in congress per the register found that yes it was and it would might be different justice kagan if there were sixteen examples after three decades had passed but the reality is congress saw the tip of the iceberg of this problem it saw something that was growing quickly and said this is a serious problem for the poor thing at the moment we're going to put remedies in place in order to stop it in order to deter it and you have from the unique on our side a whole chorus of industry associations including the chamber of commerce including the copyright alliance the way that this iceberg has grown much much bigger because how do we think about that because a lot of that is not in the record do we close our eyes to that silly acts like a trial court with respect to those sorts of facts what do we do you have a clear rationale from congress and the record which is that there was a newly emerging problem and a tip of the iceberg in congress monod to ward off justice kagan and perhaps in a case like city of burning the court might be skeptical as to whether this was a good faith sound prediction by congress or whether it was paranoia or whether it was pretextual i think the court should be heartened here justice kagan by the fact that exactly what congress feared would come to pass has come to pass over and over and over again and there's a one sided chorus this it just confirms the reality in the soundness of congress prediction why hasn't there after florida prepaid why why why do you think why has there not been have not been many many instances in which states decided well look at all this tech stuff it's fabulous we'll just copy all the patents just there has been a lot i mean there has been a lot of that and you have that from the miki and i think it's also influence licensing over i'm not going about copyright i'm talking about how as to patents i don't think that that states are in the patent business the same extent just as pirate why don't they why don't the years the solution to all their budget problems well maybe they're afraid that this court might be there at the end of the day to answer you what you say raises an interesting question under section five of the th amendment and we have decided that the congressional record at the time of and nack meant that attempts to rely on congress's section five hour is insufficient and in subsequent years there are events that would have made the records a lot stronger what does that do to the decision does that mean that it's it's subject to really examination based on what has happened after that point so why should we look at events that occurred after because you've never looked at this legislative record before when you look at this legislative record you find a predictive judgment by congress that is a well reasoned and logical evidence based predictive predictive judgment that this is a real phenomenon is emerging it's being reported from multiple sources it is quite concerning when you look at this from th and then principals among others and so they decided to do what they did so that rationale is aberrated justice alito there's a reality to it a grounding that is evident in what has happened subsequent to that and i think if the were to go from our perspective the wrong way in this case the problem will get that much worse because that will be taken as a green light for states to continue with their infringing without knowing or so can congress say we're not doing this under section five and we recognize that there's not much of a record of state violations at this point but we predict that there is going to be if if the remedy is sufficiently well tailored around the constitutional deprivation my answer to that is yes justice alito i think we are stronger than that but to take us to take tennessee v lane in us v georgia there the court was looking at essentially what are the facts of specific cases or a specific set of cases and saying from the court's perspective yes this would violate the constitution therefore the remedy is constitutional as to that i didn't understand  relied upon bias in this case and if north carolina wants to argue that it is an unconstitutional application is to then it's their burden to do so and we support the arguments of our miki that say the court could ultimately decide this case under us the georgia or a carolina and the court can decide is it decide so often when it comes to facial challenges that the c r c is not facially unconstitutional but it could be open to states in an appropriate case to make the as applied challenge you've done a very nice job of showing in your papers the blackbeard well at those children deeply but you're doing nothing with proving the proportionality to the problem because there are states that presumably have fine remedies to handle any infringement you've shown some failings in this state's processes but i don't know how any of the evidence developed like congress shows that all fifty states and territories additionally don't have adequate state systems to address this issue if i mean to the question is reflexes very briefly just a sort of some sort of number one in the legislative record the house report committee report nine in ten that house emphasize how important copyright damages are specifically statutory damages and injuries he says difference between loss of the right and protection of the right that's how important it is and of course the copyright statute preempt any equivalent state laws so there is no recourse for the copyright holder who is complaining specifically of copyright deprivation outside of the thank you mr chief justice and may please the court state sovereign immunity is a fundamental feature of our constitution structure as this court has repeatedly reaffirmed immunity from private lawsuit seeking money damages was inherent in the nature of sovereignty at the founding and remains country and the constitution preserves this aspect of state sovereignty unless there is compelling evidence that the states surrendered it when they ratified a particular constitutional provision and my friend has failed to identify any historical evidence that anyone at the founding remotely contemplated that the intellectual property clause would allow for damages lawsuits against states in fact it was not until the s nearly two centuries after the st copyright act that a federal court ever awarded damages of this kind now mr allen seeks to portray this settled state of affairs as somehow anomalous but nothing could be further from the case all of congress general lawmaking powers are subject to limits found elsewhere in the constitution including limits that protect state sovereignty and so congress could not commandeer state legislatures and force pass copyright protective laws nor could they under separation of powers principles vest view of copyright claims in the senate judiciary committee and likewise state sovereign immunity limits congress authority to expose state treasuries to the copyright acts exorbitant financial remedies and for that reason to that the act cannot be justified under section five of the th amendment copyright infringement and rarely rises to a constitutional violation at all let alone pose the kind of serious constitutional threat that allows for expansive remedies like is expansive it's vastly greater than anything required by the due process clause include statutory damages of up to one hundred and fifty thousand dollars per infringement even if the plaintive cannot prove she suffered any actual harm and creates a strict liability regime the covers negligent and even innocent infringement even though of course only deliberate property deprivations can violate the constitution and these concerns are far from theoretical the st circuit has affirmed a six hundred  thousand dollars judgment against a college student for sharing online a few copyrighted songs and sending him into bankruptcy and the due process concern that is ordinarily raised in a copyright damages lawsuit is whether they're constitutionally excessive ok now if you win why won't that happen and by the way if you're writing to the constitutional convention you're a member ok and you write these words copyright is to promote the progress of science and useful arts by securing for limited times to authors and who authors the exclusive right to their respective writings but of course california decides that the person who wrote rocky and marvel at such will unfortunately receive nothing because everyone will have seen it on the state's own streaming device or what is your response so there are two important separate issues that at issue there and i'll start with the text so the exclusive right is well sovereign immunity does not invade the exclusive right so i think that that hypothetical misunderstands respectfully the role of sovereign immunity in our constitutional system as this court said in all the states are not relieved of their binding obligation to comply with federal law and the ordinary remedies required in the constitution when a sovereign violates federal rights is an injunction and not money damages oh it's by the way we ran it yesterday you could have your injunction you see my point yes exactly well so i agree that under sovereign immunity as a necessary consequence there will be hard cases where statutory violations are not remedied but that i think the important understanding that the founders had is that when you on the opposite side of the judgment are the people and the people's money and so the entire point of sovereign immunity as this court said in lewis just a few terms ago is to protect state governments and allow them to make their own choices as to how to spend scarce they're not go they're not going to be hard cases are going to be easy cases well as it's not and justice prior's point is that it could be rampant states ripping off copyright holders and how is that how can that be squared with the exclusive rights if states can do this which presumably a ruling in your favor will do nothing but encourage them to do so i think that's the beauty of the copyright remedy act in combined with this court order decision so on extre that there has been intentional copyright infringement and there are not adequate remedies then under this court's decision they can bring a direct constitutional claim we don't dispute that and so i think to the extent that the georgian issue is really relevant here at all it's the fact that it that he ever raised the storage issue of a direct constitutional challenge was in his reply brief in this court you won't see it in the petition you want to see it and the lower in the transcript of the argument and of course for that reason the lower court's never addressed it than ever your view is that the in fact under the th amendment this statute is valid in so far as my captain marvel example deliberately takes property from people so is that what your point is yes i gore if that's your point then you're concede their point whether they raised it or not somebody else would you concede that this legislation is valid you're just saying it only applies to instances where the state deliberately takes captain marvel that would cure my problem to a considerable degree but that is the concession on your part i think it follows naturally from this court's georgia decision and but i would add one additional element which is to complete a due process violation for a deprivation of property to additional features are required need to be deliberate and then used to be no alternative remedy and here there are other alternative remedies that could be and then you know if carolina starts up doing exactly the same thing that it did for the st that sounds pretty intentional to me i think it would be intentional if the state had not explicitly bargained for a provision that says we can use mr allen's images for noncommercial purposes and now i think that that highlights how this dispute is really a dispute over the scope of a contractual license that the state received there is a pending breach of contract lawsuit in state court where the state and partner interests all are debating whether these exact facts whether we've exceeded scope of our license by for example not putting watermarks on the images and that sort of thing so i think that really i'm sorry finish but i just was going to point out as well that i think that relieves any actual due process violation that could be here because of course there's the alternative remedy is a breach of contract lawsuit which we have not asserted sovereign immunity for we've affirmatively waived our immunity in state court for breach of contract claims what do i do with the black deeply troubling it's a state saying even if i'm infringing you can't get in there that's basically how i read that law what remedies do they have under federal law for a state appendix before circuit rejected the declaratory judgment claim because it held that the two thousand and thirteen settlement agreement said that your your images mr allen are subject to the public records law and the two thousand and thirteen version of the law said that photographs that the state received in public business are public records and so that amendment couldn't possibly have affected mr allen's rights to his images so why wasn't taking why wasn't the passage of that lot of issues when the law disclaimers that something is private property is now public record so i think it possibly could be on different facts if mr allen hadn't already agreed in the contract that his images were public records but i think that this would be a pretty extraordinary vehicle for this court to decide when copyright infringement can constitute a taking i'm not aware of any federal court that has ever reached that question because it hasn't been litigated so that he never alleged that the use of the images was a taken below and he mentions it in his brief here but he doesn't even describe the substance of standards that reply under either a direct physical invasion analysis or and central deprivation of all economic value analysis and so i think that the images here could not possibly be a taking because the question here is whether our display of a handful of images in a few educational videos and the museum nonprofit newsletter constitute a complete to have done in your view in order to do that successfully i think that it should have followed the rules laid out by this court and city burning and subsequent cases and i think that to be in all fairness to congress and those decisions post dated the statute here and so they weren't even trying to meet those standards and it is an unfortunate consequence but what would a record that does meet those standards what would it look like so it would be train and identifying copyright infringement that also violated the constitution it would be intentional infringement and would be infringement where there is no alternative remedy look and congress say something like in copyright you know it any violation requires actual copy and so we're going to assume that eighty percent of the violations  because there's clearly some allowance for congress to devise prophylactic rules and this would seem to be a perfect example of like you know what given the requirements of a copyright violation we think the vast majority of them are going to be intentional and therefore are going to be constitutional viol violations are you saying congress can't say that and just target copyright violations generally i think that the they could i think on a different record if they had focused on intentional infringement and said you know this is widespread there are no adequate alternative remedies this is the scariest national constitutional problem and we will act prophylactic remedies to address the how do they show that what i think at the very least they focus on intentional infringement i would direct the court to mean i think i just talked about that they've decided that eighty percent of copyright violations are intentional because copyright violations always involve actual copy and it's hard to actually copy something negligently not impossible but hard so so congress has decided you know the vast majority of the is are intentional therefore a constitutional violations now what is congress have to do so i think there would be the additional analysis which is the proper net propre proportionality prong of the test which requires that there be some tailoring of the remedies that are given by congress to what is required by the due process clause and no one has ever claimed no i am not aware of any copyright holder has ever claimed that the exorbitant remedies found in the copyright act are required by due process i mean we're talking about one hundred and fifty thousand dollars per infringement anything unless that copying violates the due process clause and in that respect you agree that the statute can be upheld if we accept your view we've got to decide how copyright copying and the due process clause fit together which to my knowledge this court hasn't really gone into it sounds like a pretty good  now the other view would be you'd lose but you don't want to do it the other view would be it's likely that there are a nuff cases where it would violate the due process cl for us to accept the statute as a whole thereby creating in a sense another somewhat different exception to the statement in florida prepaid i'm trying to get our issue i'm trying to say it fairly from your point of view and from the other point of view so let me clarify in terms of your st construct i don't think that's actually accurate so i'm under copyright law a whole range of copying doesn't violate the copyright act at all when there's fair  that applies when as here it's contractually authorized and so an additional element is required for that to be considered intentional and copyright law has a built in set of standards here what nimer says and what the nd circuit says what is fairly well accepted in is that willful infringement is when the the the defendant has actual knowledge that the act constitutes copyright infringement now there is some dispute as to whether recklessness as to whether constitutes copy right infringement is enough but i'm not aware of any court that it's ever said in the intentionality requirement as sometimes relevant in copyright law is ever met by mere copying in fact you know fifty four dollars c two of the copyright act it says quote innocent infringement is still liable an innocent is defined as when the defendant had no reason to be aware that the infringement was do you think congress is able to make judgments about what proportion of copyright violations are indeed intentional if if congress had said given the requirement of actual copy and we think a vast majority of copyright infringements are intentional would that be precluded would that with that for within congress's power or not yes i think that congress warrants a great deal of deference in this area and so if they had conducted that examination and they had made that conclusion in a finding or it was clear in the legislative record that that was what congress was focused on anything that's what congress has to do here congress has to say we think most copyright violations are indeed intentional and therefore violate due process and here there are thirty examples would that be enough i don't i don't believe that there is a strict numerical threshold that's required to legislate under section five i think that what city of bernie says is that the remedy has to be tailored to the scope of the constitutional violation right so if there were thirty violations then congress could say well here is a proportional remedy to that level remedy the same remedy that everybody else has to pay because i mean once congress has decided that we think that there are loads of constitutional violations going on why doesn't the state have to pay what every other actor would have to pay when it engages in those constitutional violations why isn't that almost sort of by definition proportional that's what people pay it would be fortunate to cut the copyright act but section five dollars has to be focused on enforcing the due process clause and the due process clause only requires that most compensatory relief and so i think that that exposes how my friend on the other side is trying to constitutionalized copyright law what we're talking about is the due process clause and what that requires and not ordinary infringement but it's both you and your friend because what you will have the courts doing is case by case when say california tries to run they won't run captain marvel maybe it's an old movie you know and they say it's fair use and we can think of one million i'm not a one million but thousands of examples and case by case when someone tries to stop them the courts have to decide whether the due process clause in this instance where the university of california thought it was fair use to make fifty thousand copies of norman mailer's book or with something you know you say case by case we have to decide the constitutional question i think they're merely applying the ordinary rules of copyright so willful infringement we think would constitute intentional infringement and they merely assess whether alternative remedies are available and that is something the courts are we can hold copyright and we can hold infringes to it to us but we can infringe to our heart's content and be immune from any compensatory so i don't think that they could do that because i think that would be an unconstitutional condition it would be a hard case that this court would probably decide but what they could do to bring the parties into parity would be to say that states you can't hold copyrights at all the states have never claimed a constitutional entitlement to be able to hold copyrights united states government can hold copyrights what it has done is as a matter of statute and this is an interpretation of the one thousand nine hundred and nine copyright act where because congress said united states you can't hold copyright copyright courts have said well that implies that states can hold copyrights but i think that they would be within their rights to remove that right and remove that anomaly just to get back to your statement that all you have to do is sue the state officers you certainly reimburse the office who wouldn't you yeah that that's correct so is that all they have to do just name the officer rather than the state in their infringement action well i think that so yes most states would reimburse their state officers if it was within the scope of their employment and that there would be additional hurdles and that kind of case qualified immunity would apply and qualified immunity applied in this case and that's why the the claims were dismissed against the individual officers but then it's not much of a it's not much of a response to say well you can sue the officer who gets thrown out right away but you can still sue him so that's a reason not to hold the state liable well i think it is in this context and and here's why because intentionality under the due process clause is roughly equivalent to the qualified immunity analysis that's what this court said in kingsley versus hendricks and that it's intentionality is judged by an objective standard under all the facts and circumstances of vailable to the officer is what they did be construed as intentional that's a very similar to the qualified immunity necklace and i think it mirrors what the four circuit did here with where it says well there's this contract it's a little bit ambiguous it's not clear whether this is these are noncommercial uses but we won't say that what they did was intentional when a reasonable officer would read that contract and say well i think that educational videos a museum newsletter or commercial noncommercial uses and so they're covered by the contract mr park i take you back to the interesting suggestion that perhaps congress could have justified what it did in this act by saying that we predict that a high percentage of copyright infringements are intentional and therefore violate due process if we were to accept that is there any reason why the same reasoning would not apply  no i don't believe there is any distinction there and i think that that highlights how i don't think that that is actually what congress could do if it didn't match the this court's prudence or at least the jurisprudence of the lower federal court courts have not said that most copyright infringement is intentional it's the rare exception that infringement is held to be willful and so i think that it would be based on legislative record you to evaluate whether congress had a good faith basis for making that conclusion and i think on the current state of the law as i understand it they would not have that good faith basis so i'd like to describe just turn very quickly to this idea that future infringement could be anough or that these in all of those cases they said congress must identify a widespread pattern of constitutional violations in the legislative record before it and i think that that goes to the heart of the entire of the city of bernie test which evaluating congress's work and making sure they're not trying to change constitutional law through section five they have they have to be enforcing the law as interpreted by this court i think if i can make just there would be some interesting law of your articles written about whether it did so on its own merits or whether there has to be subsequent litigation and whether it automatically revived the act but no one that has ever evaluated the intellectual property clause has been ever been able to identify and distinction between copyrights and patents that could be relevant to this analysis and so yes if this court rules on the basis of article one we think that the that sort of prepaid would be overruled and i don't think that cats can can bear the weight that mr shafer tries to place on it so cats and this is that page three hundred and sixty three dollars of cats it says are some sions about the bankruptcy clause were erroneous and i think that that was a reasonable thing for congress and for this court to say given that there had been nearly a century of precedent going all the way back to nine hundred and thirty three in new york for serving trust saying that bankruptcy discharge proceeding said the the blanket statement in seminole tribe was incorrect and one holding has been undercut and that would be a reason to revisit it's two sentences that's correct your honor it's very limited and based on a principle that has been undermined by katz i think so you would apply the ordinary rules of star decisis that's the only here not that it has not been undermined in any respect and i think if you view this question in terms of the principles that starr decisis is close to uphold your legal stability reliance on this court's decisions that that would really bring this issue into focus because everyone who is evaluated for prepaid and whose job it is to evaluate this court's ruling rulings and say what are my legal rights and obligations has said that it covers right to rain without damaging the liability of the state i think that i am speaking about the state's reliance interest for the states generally and i think here's why that matters and i would bring it back to this case are cultural resources department is operating on a shoestring budget trying to recover and excavate and preserve the remaining aspects of the queensland revenge around forty percent of which are under their estimates is still on the bottom of the ocean and they are doing that work and it's when there are competing legislative priorities of school funding and disaster relief and all sorts of other more important priorities it's hard to get money to fund important work like this for th mr park would just as been spared was suggesting that it's not the strongest reliance argument to say we relied on the this court's holding to infringe other people's rights not to infringe on other people's rights i think that what they did here is that they posted online on good faith kept faith reliance on a contract it could have also been unfair on good faith reliance on perhaps an aggressive reading of fair use in other situations but they did that because they thought that they wouldn't have infringement liability of up to one hundred and fifty thousand dollars per work and there are you know i can give legions of examples where juries have awarded astronomical copyright damages there's a jury in minnesota that awarded one million nine hundred thousand dollars against a single mother of four for downloading and sharing a few copyrighted images online and the a circuit reduced that judgment to two hundred and twenty thousand dollars she still went bankrupt but because these issues are ordinarily thought to be due process problems on the other side and so i think that you would see states retract from their uses of copyrighted works in a way that benefit the public there is an amicus brief from the library association saying that this would imperil copyright infringement liability monetary liability would imperil projects and other works of archives and i think the states are simply different i thought i don't think it's respectful to the interests of state government to say you can trace to certain that they will that they will infringe at will if damages liability case after north carolina had been caught infringing it was then used as alleged in the complaint by north carolina to defend against the state court sued by interstellar because they said blackbeard law had voided this settlement agreement was now contrary to north carolina's public policy and they couldn't be held the settlement agreement nor could they be held liable that's in the complaint that is as a legend i don't think there's any ability by the state in this posture to contradict those allegations as to the interest of dispute mr parker talks about north carolina state court does not hold the copyright so their suit by definition it's not trying to vindicate the copyrights that suit was just decided by the north carolina supreme court after north carolina for years interposed sovereign immunity defenses saying that the breach of contract action had not been properly filed administrative lee there needed to be administrative exhaustion so that suit is continuing on it's not as though sovereign immunity was no impediment and it's certainly not out to vindicate copyrights as to the images in question i just have to emphasize your honor my clients of putting two decades of work essentially trying to be there to x when these images are excavated underwater at great expense at great risk and this is all essentially my clients get out of it that copyrighted and the allegations of the complaint are that north carolina not once or twice but repeatedly in systematically was infringing those copyrights was caught doing it paid fifteen thousand dollars under the terms of the settlement agreement went back to doing it even after this complaint was filed they continued to infringe the copyrights and the resolution by the th circuit is everything is dismissed and as to injunctive relief justice prior congress found it no meaningful remedy in this context different from the patent context but it's all about getting paid for past damages in order for this to be a meaningful remedy and in this case the request for injunctive relief was thrown out why because north carolina did exactly what you were to kill it just as prior they said well we've stopped infringing those images now that you've pointed it out in court we've taken those down what else have you got and without benefit of discovery the th circuit really viewed that as the end of the request for injunctive relief and that's how it goes in copyright case now as to the notion that there could be individual suits against individual officers in  three you're exactly right chief justice qualified immunity is a defense in this context i commend to the court the four circuits decision on this point it's at thirty seven a thirty nine a they basically said because there's some defense that's available to these officials that they say they read the settlement agreement differently maybe they didn't know it was copyright infringement maybe they weren't weren't looking for the watermarks or the time stamps that is a good enough defense qualified immunity gets them out of the case and those claims two are dismissed that's why it's so important part of why it's so important in copyright cases that there be secure remedies for copyright holders that's true against aids and it's true against anyone most copyright holders unlike patent holders justice alito these are small fish they have not some cost into this sort of a registration and they need to have secure statutory damages and attorneys fees in order to come to court at all because in poppy right cases as congress found from the testimony before it and the and the submissions of the register you need to have statutory damages otherwise how can you quantify what the harmless and is specially given how small the stakes are in copyright cases and how under heald most copyright plaintiffs are if you don't have those statutory damages you don't have a right and that is specifically found by congress and the house reported pages nine and ten so just as cavanagh you ask about what happens in ordinary cases this is exactly what congress looked at they said the rule in copyright cases absent the c r c say is that copyright infringement pays for states they will get away with it every time you will not have copyright holders who have incentives and means and it turns to bring suit that should not be the optimum this case and to say we're spectrally that it's incumbent upon every copyright plaintiff who state to prove a constitutional violation and willfulness in the way that mr park articulates is to render the right negatory and the c r c as well thank you that's trying to counsel the case is submitted